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2003 DIGILAW 1028 (MAD)

Udaya Kumar v. State, rep. by the sub Inspector of Police

2003-07-10

A.S.VENKATACHALA MOORTHY, S.SARDAR ZACKRIA HUSSAIN

body2003
Judgment :- A.S.VENKATACHALAMOORTHY, J. Learned Principal Sessions Judge, Chengalpattu, tried the appellant/accused for charges under Sections 302 IPC. and 201 IPC. for causing the murder of his wife by name Uma at 11.30 P.M. on 25.4.1997 in his residence at Door No.36, Murthy Avenue, Lakshmi Nagar, Porur. The Sessions Court found the appellant/accused guilty under Sections-302 and 201 IPC. and sentenced him to undergo life imprisonment and three years R.I. respectively. Questioning the correctness of the same, the above appeal has been filed. 2. The deceased is the wife of the accused. PW-1 is the brother of the deceased while PW-2 is the mother of the deceased. PWs-3 and 4 are the neighbours of the deceased. The marriage between the accused and the deceased was celebrated about 1 ½ years prior to the occurrence. The accused belongs to Neelankarai. After marriage, they used to stay for about four months in Neelankari and four months with PW-2. The deceased came to the house of PW-2 for confinement and after delivery, she remained there for about three months. The accused, who is a resident of Neelankarai, found it difficult to go to Mount Road, where he was working as an Assistant Camera Man in a concern known as 'Asha Vision'. The accused then told PW-1 to look for a house in the area where PW-1 resides. PW-1 was able to secure a house for the accused which is just about one furlong away from his house. The accused used to consume liquor and ill-treat the deceased. On 22.4.1997, the deceased went to the house of PW-1 in the morning along with child and when enquired she told that the accused, as usual, consumed liquor and beat her. Next day night, the accused came to the house of PW-1 but did not speak anything. Thereafter, on the next day, that was Thursday morning, he left the house, came back in the evening, and took the deceased and child to his house. On 25.04.1997, PW-1 went to the house of the deceased and after chatting for a while with the deceased and also playing with the child, took the child, came to his house and left the child with his mother. On the fateful day, that was on Friday, the deceased came to the house of PW-1 and took the child with her. On the fateful day, that was on Friday, the deceased came to the house of PW-1 and took the child with her. As usual, PW-1, after completing his work, came back to the house and in the house, himself and PW-2, his mother were viewing the television. At about 11.30 P.M., they heard the noise of calling bell. PW-1 opened the door and found the accused standing with the child in his hand in an agitated mood. When enquired, he replied that Uma ie., the deceased, poured kerosene on herself and set on fire. PW-1 then asked the accused as to whether they could take her to the Hospital, for which, the accused replied that it would be a waste. PW-1 ran towards the house of the accused and the mother of PW-1 also followed him, taking the child from the accused. They found the door closed from outside. When they opened the house, there was lot of smoke inside. PW-1 splashed water inside the room through the window. Hearing the noise, PWs-3 and 4, the neighbours also came. They could see that the deceased was virtually burning in a sitting posture. PW-1 then went to the police station and gave Ex.P-1 complaint. The accused, who was present, later on the left that place. PW-7 is the Inspector of Police attached to Sri Ramachandra Medical College Police Station. At about 2 A.M. on 26.4.1997, when he was in the Station, PW-1 appeared before him and gave complaint. On the basis of the same, he registered Cr. No.135/1997 under Section-174 Cr.P.C. and prepared Ex.P-8 Express F.I.R. The Express F.I.R. as well as Ex.P-1 were sent to the Court of Judicial Magistrate and copies to his superiors. Since the deceased died within seven years of her marriage, copy of the FIR was sent to the Revenue Divisional Officer, Ponneri. On 26.4.1997, PW-6, the Revenue Divisional Officer proceeded to the scene of occurrence and conducted inquest over the body of the deceased between 4.30 and 6.30 P.M. Ex.P-4 is the inquest report. At the time of inquest, he examined PW-1, PW-2 Indirani ie., the mother of the deceased and others. Thereafter, PW-6 took steps to send the body to Kilpauk Medical College Hospital for the purpose of conducting post mortem. At the time of inquest, he examined PW-1, PW-2 Indirani ie., the mother of the deceased and others. Thereafter, PW-6 took steps to send the body to Kilpauk Medical College Hospital for the purpose of conducting post mortem. The accused appeared before the Revenue Divisional Officer and gave a statement (Ex.P-6), which was reduced to writing by the Zonal Deputy Tahsildar of Ambattur, wherein, he had stated that the deceased when asked by him to serve meals refused to do so and that there was a wordy quarrel and that he slapped her twice and that her head hit against the wall and she died. According to him, in order to conceal this, he poured kerosene and set her on fire. The Revenue Divisional Officer sent his report to the Deputy Superintendent of Police, Poonamallee on 2.5.1997 to the effect that it was not dowry death and that action may be taken under the Indian Penal Code. PW-9 was the Doctor attached to Kilpauk Medical College Hospital at the relevant time. On the basis of the requisition made by the Revenue Divisional Officer, she conducted post mortem on the body of the deceased on 27.4.1997 and issued Ex.P.11 post mortem certificate. In the said certificate, the Doctor has noted four injuries which she has described as under:- " INJURIES :- 1. Dermo epidermal burns seen on the face, neck, front of right side of abdomen, back of chest and abdomen, outer aspect of right thigh, right leg, back of left thigh, outer aspect of left leg, both gluter and perineum. 2. Deep burns seen on inner aspect, front and outer aspect of left thigh and left knee, on inner aspect and posterior surface of left leg from below, the level of left knee upto the left ankle, on front and inner aspect of right thigh and on front of right side of chest, just below the callar bone extending as to the front of middle of abdomen. 3. Heat ruptures seen on posterior surface of right leg extending from below the knee upto the level of right ankle, on anterior surface and inner aspect of right upper arm and on left side of abdomen below the costal arch extending upto the left grain exposing the coils of small intestines, large intestines and the stomach. Pieces of burnt cloth adherent to the lower part of abdomen and genitals. Pieces of burnt cloth adherent to the lower part of abdomen and genitals. Injuries 1 – 3 are post mortem in nature. The base of the burns are pale yellow in colour and the margins of the heat ruptures do not show hyperaemic changes and zone of reddening seen. Deglaring skin over both hands and feet seen total area of burns is 100% 4. Dark red bruising of tissues over left frontal region of scalp and left temple 5 x 3 x .5 cm. On dissection contused laceration seen over the interior surface of left frontal lobe of brain 3 x 1 x ½ cm. with blood clots over the left anterior cranial fossa. " The Doctor had opined therein that injuries 1 to 3 are post mortem in nature and that the deceased would appear to have died of head injures. PW-8 is the Deputy Superintendent of Police, who took over the investigation. He visited the scene of occurrence and prepared Ex.P-10 observation mahazar and Ex.P-9 sketch in the presence of witnesses. From the kitchen in the house of the accused, he seized MO-1 can, MO-2 match-box, MO-4 empty bottle and other material objects under Ex.P-3 in the presence of witnesses. He examined witnesses including PWs-1 to 4 and others. After receipt of the post mortem certificate, he examined Dr.Cisila Cirill. On receipt of the report from the Revenue Divisional Officer, the crime was altered as one under Section 302 IPC. Ex.P-10 was then prepared and sent to the court of Judicial Magistrate. PW-8, the Deputy Superintendent of Police handed over the investigation to PW-10 Ilango, the Inspector of Police. On 4.5.1997, PW-10 arrested the accused at about 10 A.M. at his residence. PW-11 Rajkumar, the Inspector of Police continued the investigation. Ex.P-14 is the chemical analysis report while Ex.P-15 is the report of the Serologist. After completing the investigation, the Inspector filed his final report on 17.4.1998. 3. When questioned under Section 313 Cr.P.C., the accused denied having any complicity in the commission of the crime. 4. PW-9 is the Doctor who conducted post mortem on 27.4.1997 pursuant to the requisition made by the Revenue Divisional Officer. In Ex.P-11 ie., post mortem certificate, the Doctor had noted that the total area of burns was 100% and that the first three injuries are post mortem in nature. 4. PW-9 is the Doctor who conducted post mortem on 27.4.1997 pursuant to the requisition made by the Revenue Divisional Officer. In Ex.P-11 ie., post mortem certificate, the Doctor had noted that the total area of burns was 100% and that the first three injuries are post mortem in nature. Injury No.4 is described as under:- " Dark red bruising of tissues over left frontal region of scalp and left temple 5 x 3 x .5 cm. On dissection contused laceration seen over the interior surface of left frontal lobe of brain 3 x 1 x ½ cm. with blood clots over the left anterior cranial fossa. " According to the Doctor, the deceased would appear to have died of head injuries. Deposing as PW-9 before Court, the Doctor has stated that the said injury would have caused instantaneous death. The further evidence of the Doctor is that the deceased should have lost consciousness after injury No.4 and died immediately. The suggestion put to the Doctor that her opinion as to the cause of death is wrong has been stoutly denied. Thus, there is ample evidence to show that the deceased died only of homicidal violence. 5. Now, the question is as to whether the prosecution has established its case beyond all reasonable doubts. 6. This is a case of circumstantial evidence. Before we deal with the facts of the case, it is but necessary to refer to certain rulings of the Supreme Court as to how a Court must deal with a case, which rests upon circumstantial evidence. A. The earliest case on this point is the one reported in AIR 1952 SC 343 (Hanumant Govind Nargundkar v. State of Madhya Pradesh), wherein the Court observed as under:- " It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." B. The next ruling that can be usefully referred to is the one reported in 1984 (4) SCC 116 (Sharad Birdhichand Sarda v. State of Maharashtra). In that case, the Court pointed out that the onus was on the prosecution to prove that the chain is so complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions pointed out in that case to base a conviction are:- "(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The conditions pointed out in that case to base a conviction are:- "(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." C. In Padala Veera Reddy vs. State of A.P. ( AIR 1990 SC 79 ), the Court ruled that when a case rests upon circumstantial evidence, such evidence must satisfy the test viz., (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." D. The next important ruling is the one reported in 1996 SCC (Cri) 1205 (C. Chenga Reddy v. State of A.P.), wherein the Supreme Court has observed as under:- " In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." E. In the decision reported in 2003 SCC (Cri) 201 (Bodhraj v. State of Jammu and Kashmir), Justice Arijit Pasayat, speaking for the Bench, observed as under:- " Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR 1977 SC 1063 ; Eradu v. State of Hyderabad AIR 1956 SC 316 ; Earabhadrappa v. State of Karnataka AIR 1983 SC 446 ; State of U.P. v. Sukhbasi AIR 1985 SC 1224 ; Balwinder Singh v. State of Punjab AIR 1987 SC 350 ; and Ashok Kumar Chatterjee v. State of M.P. AIR 1989 SC 1890 ). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. ..... Sir Alfred Wills in his admirable book Wills' circumstantial Evidence (Chapter VI) lays down the following rules especially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (e) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted. " 7. Keeping the above legal position as laid down by the Supreme Court in mind, let us now proceed to consider as to what are the circumstances relied on by the prosecution and whether the prosecution has established those circumstances and as to whether those circumstances would lead to the one and only irresistible conclusion that it was the accused, who committed the murder of the deceased. 8. The circumstances are :- (I) The accused and the deceased who are the husband and wife resided under the same roof; (II) PW-3, a neighbour, happened to see the accused in the house at about 9.30 P.M. on that day, playing with the child. (III) The accused, on 26.04.1997 gave Ex.P-6 statement before the Revenue Divisional Officer, admitting his guilt. (IV) Motive for the accused to commit murder. 9. (III) The accused, on 26.04.1997 gave Ex.P-6 statement before the Revenue Divisional Officer, admitting his guilt. (IV) Motive for the accused to commit murder. 9. Let us proceed to consider the circumstances to see whether they have been established by the prosecution. I. The case of the prosecution as spoken to by PWs-1 and 2 is that at the relevant time, the accused and the deceased, who are the husband and wife respectively, were living at Door No.36, Murthy Avenue, Lakshmi Nagar, Porur. PW-1 is the brother-in-law of the accused, who has deposed that the accused was working as Assistant Camera Man in a concern known as "Asha Vision" situated in Mount Road, Madras. PW-3 is a neighbour residing in second house with that of the accused (the accused and this witness are residing in a row of houses forming part of a single building and hence, both the houses carry the same Door Number). He also deposed that the accused and the deceased have been living in the said house. PW-4, in fact, is the landlord of the premises which the accused was occupying. He has also deposed before court that both the accused and the deceased have been living together under one roof with a child. In fact, a specific question (question No.3) was put to the accused in this regard, and he has admitted that at the relevant time, himself and the deceased were residing together. Hence, it has to be taken that the prosecution has established this circumstance. II. The occurrence in this case took place at about 11.30 P.M. PW-3, a neighbour of the accused, has categorically deposed that at about 9.30 P.M., when he came back from his shop, he saw the light burning in the house of the accused and the latter playing with the child and the deceased was also there. From this, it is clear that just couple of hours before the occurrence the deceased was in the company of the accused in the house. Of course, a suggestion in this regard was made to PW-3 that he is deposing falsely at the instance of police and that he did not tell the police when enquired under Section 161 Cr.P.C. about his having seen the accused and deceased at 9.30 P.M. PW-3 is an independent witness, aged about 61 years. He has no axe to grind against the accused. He has no axe to grind against the accused. He is Electrician by profession and it is not as if, he is carrying on his profession at the mercy of the police and hence, obliged to the police to give false evidence. It would be difficult to accept that this witness has deposed falsely, implicating the accused in a serious crime. The fact that this witness has not mentioned this in his 161 Statement, at best, can be taken only as omission and on that score, we are not inclined to reject his testimony. In these circumstances, we come to the conclusion that the deceased was last seen in the company of the accused just 2 hours prior to the occurrence in his home. Proximity of time and place would be very relevant circumstances. At this juncture, we deem it necessary to refer to two rulings of the Supreme Court: (a) In the decision reported in 2002 (6) SCC 715 (para No.10) Mohibur Rahman v. State of Assam, the Supreme Court has observed thus:- " The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide." (b) In the decision reported in 2003 SCC (Cri) 201 (cited supra), the Supreme Court has held as under:- " The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible." The incident having taken place within the house and when it is within the exclusive knowledge of the accused, it is for him to explain. Refer:- 1. 1993 SCC Crl. 435 (Ganeshlal v. State of Maharashtra) 2. 1993 SCC Crl. 655 (Kundula Bala Subrahmanyam vs. State of A.P.) 3. Refer:- 1. 1993 SCC Crl. 435 (Ganeshlal v. State of Maharashtra) 2. 1993 SCC Crl. 655 (Kundula Bala Subrahmanyam vs. State of A.P.) 3. 1999 SCC Crl. 17 (State of Rajasthan v. Mahavir) 4. 2000 SCC Crl. 926 (Jospeh v. State of Kerala) But, when we refer to the statement made by him under Section 313 Cr.P.C., what all he has stated is, It would be rather difficult to accept the said explanation or the answer given by the accused. Admittedly, the child is less than one year old. Even assuming the case of the accused is true, he would not have left such a child outside the house at that odd hour. The accused has not further explained as to how it so happened that he came home at that late hour. It is not the case of the accused that his job is such that at times he would be able to come only at late night. III. The occurrence was on 25.4.1997 at about 11.30 P.M. at the residence of the accused. The Revenue Divisional Officer PW-6 conducted inquest between 4.30 and 6.30 P.M. on 26.4.1997 and examined the panchayatdars during inquest. On the same day, the accused gave a statement to the Revenue Divisional Officer and the same was reduced to writing by the Deputy Tahsildar. This statement runs to 2 ½ pages. The accused signed in all the three pages. In the said statement, the accused has stated that he used to drink and that on the fateful day, he came from office at 8.30 P.M. and after some time he asked his wife to serve him food, but she refused to do so and she also did not take her meal. There was a wordy quarrel between them in the small kitchen. The accused slapped her twice which hit her and that she breathed her last and thereafter he poured kerosene and set her on fire. {To quote the exact words, In cross examination, to the Revenue Divisional Officer, it has been suggested that after post mortem, when the accused was in lock-up, there was a threat and he was made to sign in a prepared statement. There is no suggestion that the R.D.O. was present when he signed. Investigation of this case was done by Pws-8, 10 and 11. There is no suggestion that the R.D.O. was present when he signed. Investigation of this case was done by Pws-8, 10 and 11. To none of these witnesses, suggestions were put with reference to the fact that the accused was compelled to sign Ex.P-6 prepared statement. That apart, from the records available in this regard, it could be seen that this accused sent a petition on 16.5.1997 from jail to the Judicial Magistrate to the effect that when he was in police station, the Revenue Divisional Officer came there and assured him that if he accepts the guilt, he will make arrangements to release him and thereafter he signed the statement and at that time, the police officials were there. We make it clear that we are not for a moment taking Ex.P-6 as an extra-judicial confession or as a substantial piece of evidence, but only as a piece of admissible evidence. Thus, it could be seen that the appellant has made a false statement to PW-1 so also before the Court when examined under Section 313 of the Criminal Procedure Code, which would serve as an additional link. In this regard, the following rulings of the Supreme Court can be mentioned: i. 2001 SCC Criminal 49 - State of U.P. v. Hari Mohan ii. 2003 SCC Criminal 382 – Shadevan v. State. IV. The next circumstance is with regard to motive. Admittedly, the accused and the deceased got married about one and half years back and the accused is in the habit of consuming liquor and beating the deceased. PWs-1 to 4 have categorically deposed in this regard. In fact, PW-1 has referred to the earlier instances, when the deceased came and stayed in the house of PW-1 not being able to bear the beating by the accused. Or in other words, from the evidence, it is clear that the accused was in the habit of beating the deceased. We are not for a moment saying from the evidence of PW-4 that accused had motive to finish off the deceased, but only to the limited extent that the accused was in the habit of beating the deceased, his evidence can be taken into consideration. 10. We are not for a moment saying from the evidence of PW-4 that accused had motive to finish off the deceased, but only to the limited extent that the accused was in the habit of beating the deceased, his evidence can be taken into consideration. 10. We find that the prosecution has proved the above circumstances and in our considered view, all these circumstances lead to the one and only irresistible conclusion that it was the accused, who should have murdered the accused. 11. The next question is as to what is the offence committed. There is no direct evidence with regard to the occurrence. While questioning under Section 313 of the Code of Criminal Procedure, the accused has denied having committed any offence. But, it is the case of the prosecution that the accused has been in the habit of consuming liquor and beating the deceased. Ex.P-6 is the statement given by the accused to the Revenue Divisional Officer on 26.4.1997 and this statement is relied on by the prosecution. In the said statement, the accused has stated that on that day, he came from Office at 8.30 P.M. and that after sometime, he asked his wife to serve him food, which she refused and there was a wordy quarrel between them and thereafter, he slapped her and the deceased sustained the injury by hitting the wall in the narrow kitchen. Though the accused has not stated this in his statement under Section 313 Cr.P.C., still this being a statement made by him to the Revenue Divisional Officer on the very next day and that the prosecution has also placed reliance on this statement, the accused can also rely on this statement for showing as to what is the offence he has committed. From the facts and circumstances of this case, it is obvious that there was no pre-meditation. Before the occurrence, there was a wordy quarrel. Probably, the accused who is in the habit of consuming liquor lost his balance and dashed the head of the deceased forcibly on the wall. It cannot be said that he had no intention to cause death. In facts and circumstances of this case, this Court is of the view that the offence would fall under Section-304 Part-I IPC. and not under Section 302 IPC. Interests of justice would be met by awarding a sentence of rigorous imprisonment for ten years. 12. It cannot be said that he had no intention to cause death. In facts and circumstances of this case, this Court is of the view that the offence would fall under Section-304 Part-I IPC. and not under Section 302 IPC. Interests of justice would be met by awarding a sentence of rigorous imprisonment for ten years. 12. In the result, the conviction and sentence imposed on the appellant/accused under Section 302 IPC. are hereby set aside. Instead, he is convicted under Section 304 Part-I IPC. and sentenced to undergo rigorous imprisonment for ten years. The conviction and sentence under Section 201 IPC. are confirmed. Both sentences are to run concurrently. The appeal is allowed to the extent indicated above.