AKBAR, ISMAIL MARTHUR & Ors. v. State of Karnataka

kerosene and have set fire to her and she has been taken to the hospital. Immediately, she proceeded to Government hospital Gulbarga and there she saw her daughter having sustained burn injuries on her person including the face and being treated for the same. On enquiry with her deceased daughter she told her that Accused Nos. 1 and 2 assaulted her, Accused No.1 poured kerosene and set fire to her and they did so for the sake of money.

2.] It is also the case of the prosecution that after the deceased was set fire she raised cries and hearing the same PW.5, PW.6, PW.1O and PW.11 who are 7 residing near the house of Accused No.2 came and they saw the deceased having sustained burn injuries on her body and on enquiry she told them that she sustained the same at the hands of accused and requested them to remove her to the Hospital and accordingly, on securing an auto rickshaw they sent the deceased to the hospital along with Al and A.2.

2. It is further the case of the prosecution that PW. 14-A.S.I. on receipt of the intimation from the hospital came to the hospital at about 10.00 p.m. He gave a requisition to the Medical Officer — PW.2 as per Ex.P.3 to ascertain whether the deceased was in a fit condition to give her statement. The Medical officer told him that she is not in fit condition to give her statement and made an endorsement to that effect as per Ex.P.3(a). Thereafter, he gave the said requisition to PW. 1 6-Taluka Executive Magistrate to record the statement of the deceased and returned to the police station. PW. 16 — Incharge Taluka Executive Magistrate in response to the requisition as per Ex.P.3 given by 7 8 PW.14 recorded Ex.P12 the statement of the deceased on 14.9.2004 at the Government Hospital Gulbarga.

2. It is also the case of the prosecution that thereafter PW. 1 appeared before PW. 14 at about 01.00 a.rn. on 14.09.2004 and filed her complaint as per Ex.P. 1. On the basis of the same, PW. 14 registered a case in Crime No.95/04 for the offences punishable under Sections 498 - A, and 307 nw. 34 of IPC against the accused and issued a FIR to the Jurisdictional Magistrate as per Ex.P.9. On the same day, at about 8 a.m. he proceeded to the spot of the occurrence i.e. house of accused No.2 situated at Ganganagar and there he prepared the spot panchanama as per Ex.P.6 in the presence of PW.8 and seized M.O.2 thereunder. Thereafter, he recorded the statements of PW. 5, PW. 10, PW. 11 and two other witnesses. On the same day at about 1.00 p.m he visited the Government Hospital and contacted the Medical Officer on duty, who informed him that the deceased was not in fit condition to give her statement. Again he visited the Hospital on that day 0 9 at about 6 p.m. and at that time as she was in fit condition to make her statement as certified by the Medical Officer he recorded her statement. He also came to know by that time PW16 - Taluka Executive Magistrate had also recorded the statement of the deceased. Thereafter at about 6.30 p.m. the same day he arrested A. 1 and on completion of the arrest formalities he got him remanded to judicial custody. On

16.9.2004 the deceased was shifted from Government Hospital Gulbarga to Basaveshwara Hospital Gulbarga for further treatment. On 17.9.04 at about 02.45 a.m. the deceased expired at Basaveshwara Hospital while undergoing treatment and to that effect he received intimation as per Ex.P. 10. On the basis of Ex.P. 10 he prepared an additional report as per Ex.P1 1 adding Section 302 of IPC in the case registered earlier and forwarded the same to the Jurisdictional Magistrate. Thereafter, he gave requisition to the Taluka Executive Magistrate - PW. 15 to hold inquest over the body of the deceased, who in response to the same held inquest 10 over the body of the deceased in the presence of the panchas PW.9 and PW. 12 and drew-up inquest panchanama as per Ex.P.8. Thereafter, he forwarded the body for subjecting to post mortem examination along with a requisition. In the meantime, he also seized the nose-stud MO. 1 found on the body of the deceased under panchanama Ex.P.7 in the presence of pancha PW.8. In response to the requisition given by PW. 14, PW. 17 Medical Officer conducted autopsy over the body of the deceased and issued post mortem report as per Ex.P. 13. Thereafter, PW. 14 handed further investigation to PW. 13 - CPI on 25.9.04. PW. 13 on taking over the investigation verified the same. He arrested A.2 on 8.10.04 and on completion of the arrest formalities, got her remand to the Judicial custody and thereafter on completion of recording of the statements the witnesses and on obtaining the necessary documents including the wound certificate filed the final report against the accused before the Jurisdictional Magistrate. The learned Magistrate in turn committed 1 fl the case of the accused to the Court of Sessions and on committal the accused pleaded not guilty to the charges framed and claimed to be tried.

3. The prosecution in support of its case in all examined PWs. 1 to 17 and got marked Exs.P. 1 to P.13 and MOs. 1 to 3. The accused have got marked Ex.D. 1 during the course of examination of the prosecution witnesses.

4. After completion of the prosecution evidence the accused have been examined under Section 313 of Cr.P.C. They have denied incriminating circumstances put to them found in the evidence of prosecution witnesses and have statement. Thereafter, they were called upon to enter on their defence and to adduce their defence evidence if any they have in support of their case. In response to the same, both the accused have got themselves examined as DWs. 1 and 2 and they got marked Exs.D.MO. 1 and D.MO.2. It is their case that 11 12 deceased has committed suicide by setting fire to herself and they have no nexus of whatsoever with the deceased sustaining burn injuries. Among the witnesses examined prosecution, PW. 1 is the mother of the deceased who has filed her complaint as per Ex.P. 1. PW.2 is the Medical Officer who has treated Accused No.2 and has issued wound certificate as per Ex.P.2. He has also informed PW. 14 ASI initially on the night of 13.9.04 stating that the deceased was not in a fit condition to give her statement. PW.3 is the Medical Officer who has given treatment to the deceased, but her evidence is not complete since the originals’ have not been produced by her .PW.4 is an engineer who has drawn up sketch of the scene of the occurrence as per Ex.P.4. PWs.5, 6, 10 and 11 are the neighbours of A.2 who have come near the house of A.2 immediately after the occurrence and have seen the deceased having sustained the burn injuries. PW.7 is the sister of PW. 1 who on coming to know of the deceased having been admitted to the l) 13 hospital has proceeded to the hospital and on the next day, she was told by the deceased that she sustained injuries at the hands of the accused. PWs.8. 9 and 12 are the panchas for Exs.P.6, P.7 and P.8 namely spot panchanama, seizure panchanama inquest panchanarna. PW. 15 is the Taluka Executive Magistrate who has drawn up the inquest panchanama as per Ex.P.8. PW. 16 another Taluka Executive Magistrate who has recorded Ex.P. 12 - the dying declaration of the deceased. PW. 17 is the Medical Officer who has conducted the autopsy over the body of the deceased and has issued post mortem report as per Ex.P. 13. PW. 14 is the ASI who has conducted major part of the investigation. PW. 13 is the CPI who after completion of the investigation has filed final report against accused before Jurisdictional Magistrate.

5. The learned Sessions Judge thereafter on hearing the learned Public Prosecutor for the State, learned cousnel for the accused and on perusal of the 14 evidence and documents placed on record came to the conclusion that the prosecution has established the charges levelled against the accused and accordingly, by his judgment and order dated 10.11.06 convicted them for the offences punishable under Section 498 -A nw. 34 of IPC and 302 r/w. 34 of IPC and sentenced them to undergo imprisonment imprisonment for life and to pay a fine of Rs.2,500/- and Rs.5,000/- each in default to undergo S.I. for one month and three months respectively for the said offences. It is the correctness and legality of the said judgment and order of conviction and sentence that has been assailed by the appellants/accused in this appeal.

6. Learned counsel for the appellants/accused assailing the impugned judgment and order conviction and sentence contended that the same cannot be sustained as there is no clinching and cogent evidence placed on record by the prosecution to establish the guilt of the accused. Elaborating his 14 15 submission learned cousnel contended evidence on record that of PW. 1 the mother of the deceased, PWs.5, 7, 10 and 11 does not inspire confidence to place reliance on their testimony having regard to delay in filing the first information before the police, the suspicious circumstances under which Ex.P. 12 - the dying declaration of the deceased has come into existence and as the evidence of the said witnesses does not corroborate with each other on material particulars. The said evidence which is not trust-worthy has not been appreciated in the right perspective by the Trial Judge. He further contended that the entire evidence on record is shrouded with suspicion as the prosecution witnesses have not explained the injuries sustained by accused No.2 on her person who admittedly was taken to the hospital along with the deceased and as they have suppressed the material facts in the case, the same does not point towards the guilt of the accused. He further contended that evidence of the accused examined as DWs. 1 and 2 15 16 clearly goes to show that there was absolutely no demand for dowry by them and the deceased has committed suicide on her own by setting fire to herself which has not been properly appreciated by the learned trial Judge and therefore, the impugned judgment and order of conviction and sentence cannot be sustained. Accordingly, he prayed for setting aside the same by allowing the appeal.

7. Per contra, learned High Court Government Pleader for the State supporting the impugned judgment and order passed by the trial Judge contended that the evidence of the prosecution witnesses pointed to the guilt of the accused persons, more particularly that of PWs. 1, 5, 7, 10 and 11 reveal that the accused have subjected the deceased to cruelty and harassment both mentally and physically on the ground of demand of her salary and further they have committed her murder by dousing her with kerosene and setting fire to the deceased and as nothing has been brought out in the cross-examination of the said witnesses to discredit 16 17 their testimony which is fortified from Ex.P. 12-dying declaration the deceased recorded by PW.16 - Taluka-Executive Magistrate, the impugned judgment and order passed by the trial Judge does not call for any interference and accordingly, appeal be dismissed.

8. Taking submission consideration, the evidence and the documents on record, the points that arise for our consideration are: (1) Whether the prosecution has established the deceased Baby has died on account of sustaining burn injuries? (2) Whether the Prosecution has established that the accused in furtherance of their common intention, subjected the deceased to cruelty and harassment both mentally and physically on the ground of demand of the salary drawn by her and further they did douse her with Kerosene and set-fire to her with an intention of committing her murder? - 17 18 (3) Whether the impugned judgment and order of the trial Judge calls for any interference? (4) What order?

9. Re-point No.1 :- The prosecution in order to establish that deceased Baby has died on account of sustaining burn injuries have placed reliance on the evidence of PW. 17 — Medical Officer who has conducted autopsy over the body of the deceased and the post mortem report Ex.P. 13 issued by him. His evidence reveals that he conducted autopsy over the body of the deceased on

17.9.04 and at that time he noticed burn injuries on face, neck, both the hands, upper chest, abdomen over back and lower abdomen, anterior and posterior aspect of both legs, and the said burns were approximately to the extent of 90%. He has further stated that on dissection of the body he noticed puss coming out of cut section of lungs and all the internal organs were congested. He is of the opinion that the death was due 18 19 to septicirnic shock secondary to burns. In the cross — examination of this Medical Officer nothing has been elicited to discredit his testimony with regard to the deceased having sustained injuries succumbing to the same. The only question put to him in the cross—examination is that whether it is suicidal or homicidal or accidental death, to which PW. 17 has answered that he cannot say. It is elicited in the cross- examination that he noticed deep injuries on the neck. The deceased having died due to burn injuries is not seriously disputed by the accused. According to them, the deceased sustained burn injuries on account of setting fire to herself in order to commit suicide. In view of the evidence of PW. 17 and the stand taken by the accused, is clear that the deceased has died on account of sustaining burn injuries. The same is also fortified from the evidence of PW. 1—mother of deceased, PWs.5, 10, 11 who are neighbours of the accused and PW.7 sister of PW. 1. Apart from the same, it is also fortified from the evidence of PW. 15 Taluka 1Q 20 Executive Magistrate who has conducted inquest over the body of the deceased and has drawn up inquest panchanama as per Ex.P.8, which is supported by PW. 12-the inquest panchanama. As already pointed out the deceased having died on account of sustaining burn injuries is also not disputed to by the learned counsel for the accused. In that view of the matter, we have no hesitation to hold that the deceased Baby has died on account of sustaining burn injuries and Prosecution has established the same.

10. Re: Point No.2:- It is the case of the prosecution that the accused were demanding the deceased to pay her salary. The deceased had given Rs.30.000/-, despite the same, quarrels were taking place both in the house of PW. 1 and Accused No.2. In this connection, the accused in furtherance of their common intention were subjecting the deceased to cruelty and harassment both mentally and physically. As their demand was not acceded to, on

13.9.2004 in the night at about 8.45 p.m. in the house 9n 21 of A.2 situated at Ganganagar in Gulbarga doused her with kerosene and set fire to her, due to which, she sustained burn injuries and succumbed to the same while undergoing treatment at Basaveshwara Hospital on 17.9.2004 and they did commit her murder in furtherance of their common intention. The prosecution in order to establish the same have relied upon the evidences of PW. 1- mother of the deceased, PWs.5, 6, 10 and 11 - neighbours of A.2 and PW.7 - sister of PW. 1. Apart from the same, they have also relied upon the evidence of PW. 16 —Taluka Executive Magistrate who has recorded the dying declaration of the deceased which is at Ex.P. 12. The established facts of the case are: - The deceased is the daughter of PW. 1-Gauramma. PW. 1 was residing situated Dhanagargalli, Brahampur, Gulbarga for the last 30 years. She had lost her husband about 5 years prior to the occurrence. The deceased Baby had completed her graduation and had obtained her B.Ed. degree. Accused ‘)l No.1 is the son of Accused No.2 who was residing in a rented house situated at Ganganagar in Gulbarga. Accused No.1 had studied up to 10 standard and an auto driver by occupation. The deceased and A. 1 had fallen in love with each other when they were studying in the school and initially they had got their marriage registered at Afzalpur and later about three years prior to the occurrence their marriage had been performed and their marriage was a love marriage and inter caste marriage as deceased was a Hindu and A. 1 is a Muslim. After the marriage A. 1 and the deceased were living in the house of PW. 1Gouramma situated at Dhangargalli Brahampur Gulbarga. They were also visiting the house of Accused No.2. It is the case of the prosecution that the deceased got appointed as school teacher in Gangamma High School, Shahabad 2-3 months after her regular marriage with A. 1. Initially the couple lived happily in the house of PW. 1. Trouble arose after the deceased started getting her salary. It the case of 23 prosecution that accused were demanding deceased to pay her salary and in that connection quarrels were taking place between them both in the house of PW. 1 and A.2. It is also the case of the prosecution that A. 1 had raised loan and in order to discharge the same, he wanted money and in that connection the deceased had given a sum of Rs.30,000/- to A.1. In spite of the same, accused were subjecting her to cruelty and harassment by beating her demanding to pay her salary. Ultimately, on 13.9.2004, A. 1 took the deceased to the house of his mother-A.2 and there he doused with her kerosene and set fire to her with the assistance of his mother A.2, due to which she sustained burn injuries and succumbed to the same while undergoing treatment in the hospital on

17.9.04. PW. 1 in her evidence has stated that A. 1 was quarreling with the deceased for the sake of money, as he was to repay the loan. Here itself we may mention that the version of the accused also reveals that they had arranged some money which had been paid to the 24 management of the school for securing job to the deceased and that would go to show that the evidence of PW. 1 is fortified in respect of the accused demanding salary as the deceased had given a sum of Rs.30,000/- to discharge the loan. The evidence of PW. 1 also reveals that A. 1 was demanding more money and in that connection he was beating and harassing her. It is to be noted PW. 1 is best person to speak in this regard as admittedly, the deceased and A. 1 were living in her house. It is the case of the prosecution that the deceased used to give her salary, which she was getting to her mother and that was not liked by A. 1 and A.2. On the other hand, they were expecting that the deceased should handover the same to them. The evidence of PW. 1 is also corroborated by the dying declaration-Ex.P12 of the deceased recorded by PW. 16 Taluka Executive Magistrate. Apart from this, it is also corroborated by the evidence of PWs.5, 7, 10 and 11 who in their evidence have stated that the accused were quarrelling with the deceased for the sake of money, 24 25 whenever they were visiting the house of A.2. PW.6 who has been examined by the prosecution in this connection has turned hostile, but that will not in any manner come to the aid of the accused to come to the conclusion that they were not quarrelling with the deceased for the sake of money or otherwise. These witnesses namely PWs.5, 10 and 11 admittedly are residing near the house of A.2 and their evidence reveal that A. 1 and A.2 were quarrelling with the deceased for payment of money. In this connection, the evidence of the accused on a close scrutiny also fortifies that they were subjecting the deceased to cruelty and harassment on the ground of demand of her salary as they were to discharge the loan that they had raised. Further the evidence of PW. 1 reveals that on the date of occurrence at about 7.00 p.m. A. 1 took the deceased to Sharana Basaveswara Temple from her house and they did not return till 9.00 p.m. It is an admitted fact that the deceased Baby had sustained burn injuries in the house of A.2 at about 8.45 p.m. and so also A.2 had sustained fr_ 25 26 some burn injuries on

13.09.2004. It established that the deceased Baby raised cries after she was set-fire and on hearing her screams people had gathered near the house of A.2 and they managed to send the deceased Baby who had sustained burn injuries along with A. 1 and A.2 in an Autorikshaw to the Government Hospital at Gulbarga. It is the case of the accused that they had not subjected the deceased to cruelty and harassment as alleged on the ground of demand of her salary. On the other hand, it is their case that the deceased Baby had committed suicide by setting fire to herself after dousing with kerosene in the house of A.2. PW. 1 has stated that on the date of occurrence A. 1 took the deceased to Sharanabasavshwara Temple at Gulbarga from her house and they did not return home till 9.00 p.m. Therefore, she went to the house of A.2, but by that time some people had gathered infront of the house of A.2 and someone among them told her that A. 1 and A.2 had assaulted Baby poured kerosene on her and have 26 27 fire and therefore, she has been taken to the hospital. She proceeded to the hospital and there she noticed her deceased daughter having sustained burn injuries on her body including some parts of her face. On enquiry her deceased daughter told her that A. 1 poured kerosene on her and set fire to her. She also told that they did so for the sake of money. She has stated that she gave oral complaint to the police as per Ex.P. 1 and affixed thumb impression as per Ex.P.1(a). She has further stated that deceased was treated in the Government Hospital for about four days and thereafter, she was shifted to Basaveshwara Hospital at Gulbarga where she expired while undergoing treatment. Her evidence also reveals that Doctors, Police Officers, Taluka Executive Magistrate had visited the hospital and met her and her deceased daughter Baby. She has categorically stated in her evidence that A. 1 and A. 2 are responsible for the death of her daughter. Her evidence has been tried to be assailed on the ground that her earliest version and that of her deceased daughter, 27 28 which had been recorded by the police as admitted by her, is suppressed. It is pertinent to note that the deceased has been treated in Government Hospital on that night. She has not seen either A. 1 or A.2 and nobody was present when she had been to emergency ward. The police had come to the hospital but she did not speak to them. In this connection, it is to be noted deceased was treated in the emergency ward and having seen her daughter having sustained burn injuries and groaning in pain could not have bestowed her attention to the persons who had visited her deceased daughter at that hour. Therefore, it cannot be said that earliest version is suppressed and the evidence of PW1 is untrustworthy which finds support from other evidence on record. Apart from this, a suggestion is put to her stating PW. 12 Rudrayya is having illicit relationship with her and that he was visiting to her house very often and PW.7-her sister and PW. 12-Rudrayya were harassing the deceased Baby questioning as to why she married 29 A. 1 who was a Muslim boy and being dejected of the same the deceased has committed suicide. There is no substance in this allegation as PW. 1 has denied the same and if according to the accused, PW. 1 really had any objection for Baby marrying A. 1 then she would not have allowed the couple to stay in her house, on the other hand, she would have ousted them immediately. Therefore, it cannot be said that either PW. 1 or her sister PW.7 or PW. 12-Rudrayya had harassed the deceased so as to drive her to commit suicide, as suggested by the accused. We do not find any merit in the said stand taken by the accused in view of the material on record. Apart from this, the evidence of PWs.5, 10 and 11 in this case reveal that on the date of occurrence on hearing screaming from the house of A.2 in the night at about 8.30 p.m. or 8.45 p.m. they came near the house of A.2 and at that time they saw the deceased having been brought out from the house by A.2 with burn injuries all over the body and on their enquiry with the 2q 30 deceased she told A.2 had caught hold of her and A. 1 had poured kerosene on her and lit fire to her. It is seen from the evidence of these witnesses that nothing serious has been elicited in their cross-examination to discredit their testimony. Admittedly, PWs.5, 10 and 11 are the neighbours among whom PW. 11 is an Advocate, who has no grievance whatsoever to implicate the accused falsely. It is the case of the accused that the deceased has committed suicide in the house of A.2 having been dejected by the pressure brought on her by PWs 1, 7 and PW. 1 2-Rudraiah. This stand of accused cannot be accepted for the reasons already assigned and as the evidence of PWs. 10 and 11 reveal the deceased requested them to remove her immediately to the hospital. If her intention was to commit suicide, she would not have made such a request to them to remove her to the hospital. Apart from this, we do find from the evidence of PW. 1 6-Taluka Executive Magistrate, who has recorded Ex.P. 12-dying declaration of the deceased, which reveals that 30 31 accused after dousing her with kerosene set fire to her, due to which, she sustained burn injuries and they were quarreling with her on the ground of demand of her salary. Though the evidence of PW. 16 and Ex.P. 12 was assailed by the learned counsel for the appellants on the ground that no certificate is appended on Ex.P. 12 by the Medical Officer to the effect that the deceased was in a fit condition to make her statement, in the light of the evidence of PW. 1 mother of the deceased, PWs.5, 7, 10 and 11, we are satisfied that the deceased has made her statement implicating the accused. The theory of suicide set up by the accused is not probabalized from their evidence. It is set up by them in order to escape from their liability. Therefore, viewed from any angle, the evidence of these witnesses go to show that the accused have subjected the deceased to cruelty and harassment both mentally and physically on the ground of demand for her salary. Insofar as A.2 having shared common intention of committing the murder of the deceased along with A. 1, 31 32 It is seen that she has also sustained burn Injuries on her person, which Is fortified from the evidence of PW.2, who has treated her on the night of the occurrence. It is onrecordthatthedeceased,A.2andA.lweresentln an autorickshaw to the hospital. A. 1 admittedly even according to his evidence has taken the deceased and A2 to the hospital. There is no material brought on record to show that after reaching the hospital A. 1 has whispered a word before Medical Officer, who has treated A.2 and the deceased stating that the deceased has set fire to herself after dousing with kerosene. However, we are of the opinion that from the evidence on record, It was A. 1 who has doused the deceased with kerosene and set fire to her as per the statement of the deceased made In Ex.P12. We do not find any corroborative material on record to show that A.2 had any hand In sharing common Intention with A. 1 to commit the murder of the deceased. But on the other hand, as already pointed out there Is evidence to show that she along with A. 1 had subjected the deceased to 32 33 cruelty and harassment both mentally and physically on the ground of demand of her salary. In view of the fact that she has sustained burn injuries on her person it would go to show that she had not shared common intention to commit the murder of the deceased, but on the other hand had made efforts to douse the flame and save the deceased. In the light of the same, we are of the opinion that the evidence on record which we have adverted to above goes to show that both the accused have subjected the deceased to cruelty and harassment both mentally and physically on the ground of demand of her salary and further A.2 had not shared any intention to commit the murder of the deceased along with A. 1 in view of the burn injuries found on her. Coming to the contention urged with respect to delay in filing the complaint and supression of material facts more particularly that of A.2 sustaining burn injuries, we do not find any merit in the same, because PW. 1 filed her complaint at the dead of night at about

1.00 a.m. on 14.9.04 before PW. 14-ASI, who has 33 34 registered the case and further as the same has reached the Magistrate the next day at about 9.15 a.m. i.e. on

14.9.04. Having regard to the facts and circumstances of the case, we do not find there is any delay in lodging the first information and there is suppression of genesis of the case, in view of the evidence of PW. 11, who has stated that A.2 had also sustained burn injuries on her person. Therefore, we the opinion that prosecution has established that the accused have subjected the deceased to cruelty and harassment both mentally and physically on the ground of demand of her salary and further it has been established that it is only A. 1 who has set fire to the deceased after dousing her with kerosene with an intention and knowledge of committing her murder and A.2’s role in the same, not conclusively established by the prosecution.

11. Re:PointNo.3: For the reasons stated to above, we are of the view that the learned Sessions Judge on appreciation of the 35 evidence and documents on record has come to the right conclusion that the prosecution has established the accused in furtherance of their common intention have subjected the deceased to cruelty and harassment both mentally and physically on the ground of demand of her salary and thereby they have committed offence punishable under Section 498-A nw. 34 of IPC Insofar as conviction of the accused for the offences punishable under Section 302 r/w. 34 of IPC in respect of committing the murder of the deceased, we are of the view that the evidence on record, which we have adverted to above, does not reveal that A.2 had shared the common intention along with A. 1 to commit the murder of the deceased and therefore, the impugned judgment and order of the trial Judge convicting and sentencing A.2 for the offence punishable under Section 302 nw. 34 of IPC cannot be sustained.

12. Re:PointNo.4 :- In the result for the foregoing reasons, we proceed to pass the following order: 2c 36 1,1 ii) The Appeal insofar as Appellant No.1 IA. 1 dismissed and appellant No.2 /A2 is allowed in part. The impugned judgment and order passed by the tnal Judge convicting and sentencing appellant No.2 for the offence punishable under Section 302 r/w. 34 IPC is set aside and she is acquitted of the said charge. However the conviction and the sentence passed on her for the offence punishable u/Sec.498-A r/w.34 of IPC is affirmed. It is brought to our notice that A.2 is on bail. She shall surrender before the trial Court to serve the sentence passed on her for the offence punishable under Section 498-A nw. 34 IPC. 3TTm.- SA