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2015 DIGILAW 305 (GUJ)

STATE OF GUJARAT v. DEEPAK @ DIPU BABULAL AGRAWAL

2015-03-19

Z.K.SAIYED

body2015
JUDGMENT 1. By way of present Appeal, the appellant State challenge the judgment and order dated 24.6.2005 passed by the learned Additional Sessions Judge and Fast Track Court No.6, Vadodara, in Sessions Case No.13 of 2005, whereby the learned Sessions Judge has convicted the respondents – accused persons for offences punishable under Section 498(A) read with Section 114 of the Indian Penal Code and sentenced to undergo one year simple imprisonment and to pay fine amount of Rs.200/-, in default of payment of fine, further simple imprisonment of one month. The learned Sessions Judge was pleased to convict the accused No.1 for the offence punishable under Section 323 of the Indian Penal Code, but no separate sentence was imposed upon him. Learned Sessions Judge was pleased to give benefit of probation under Section 4, 1, 3 of Probation of Offenders Act as well as Section 360 of the Code of Criminal Procedure to the respondent No.2 and thereby suspended sentence for the offence punishable under Sections 498(A) read with Section 114 of the Indian Penal Code. The learned Sessions Judge was also pleased to acquit the accused No.2 for the offence punishable under Section 504 of the Indian Penal Code and he was also pleased to acquit the accused Nos.1 and 2 for the offence punishable under Sections 306 read with Section 114 of the Indian Penal Code. 2. Short facts of the case of the prosecution are such that the complainant Kamlaben, wife of the accused – respondent No.1 filed complaint before “C” Division Police Station at Vadodara against the respondents for the offences punishable under Sections 323, 504, 498(A), 306 and 114 of the Indian Penal Code. It is the case of the prosecution that the complainant belonged to Marathi community and prior to 11 years from the date of incident, she was married with the accused-respondent No.1 by way of love marriage. During her wedlock period, the complainant gave birth two children i.e. son and daughter. The complainant and her mother-in-law were residing separately in the same premise. As per the case of the prosecution, on 23.10.2004, the respondents – accused were suspecting about the character of the complainant and she was beaten by the respondent No.1 and the respondent No.2 gave filthy abuses to the complainant. The respondent No.2 had thrown away the household materials and threatened the complainant to give divorce. As per the case of the prosecution, on 23.10.2004, the respondents – accused were suspecting about the character of the complainant and she was beaten by the respondent No.1 and the respondent No.2 gave filthy abuses to the complainant. The respondent No.2 had thrown away the household materials and threatened the complainant to give divorce. As per the case of the prosecution, the respondent No.1 was present at that relevant point of time, as he was sleeping in the house. Thus, the accused persons with abetment of each other caused physical and mental torture to the complainant and therefore, the complainant by pouring kerosene on her and setting her at fire and thereby committed suicide and during the course of medical treatment, she died. Thereafter, said accused were also arrested. The statements of witnesses were recorded and thereafter, charge-sheet was filed against the accused before the learned Judicial Magistrate First Class, Vadodara, who in turn committed the case to the Court of Sessions as the same was exclusively triable by the Court of Sessions. The accused pleaded not guilty for the charge and claimed to be tried. The main defence of the accused was that they were falsely implicated in alleged offence. 2.1 To prove the case against the accused, the prosecution examined following witnesses : Sr. No. Name of the witnesses Exhibit P.W.1 Yogesh Bipinchandra Srivastava, Panch 10 P.W.2 Pravinbhai Madhavbhai Parmar, Panch 12 P.W.3 Miyamohmmad Ismailhai Lambawala, Panch 14 P.W.4 Mustaq Gulamrasul Mansuri, Panch 16 P.W.5 Dr. Vaishakhi Yashvantrai Shukla 17 P.W.6 Rajubhai Laxmanrav Godse, witness 21 P.W.7 Savitaben Lalmanrav, witness 22 P.W.8 Narayanrav Babulal Agarwal, witness 23 P.W.9 Mayuriben Shivprasad Babulal, witness 24 P.W.10 Kalidas Chhotabhai Mali, witness 25 P.W.11 Madhuben Vijaybhai, witness 26 P.W.12 Hirabhai Ramsingbhai Rathva, A.S.I. 27 P.W.13 Gurupritsinh Surendrasinh Swyan, P.S.I. 33 P.W.14 Karamsinh Arjanbhai Desai, ACP 41 P.W.15 Rohitkumar Saburbhai Variya, Ex. Magi. 15 2.2 The prosecution has also produced documentary evidence, which are as under : Sr. Magi. 15 2.2 The prosecution has also produced documentary evidence, which are as under : Sr. No. Documents Exhibit 1 Panchnama – Scene of offence 11 2 Inquest Panchnama 13 3 Arrest Panchnama 15 4 Yadi for P.M. 18 5 Police report – dying 19 6 P.M. note 20 7 Report for registering the offence 28 8 Entry in Station diary 29 9 Worthi for dispensary 30 10 Entry in station diary for dispensary 31 11 Intimation made by the Police about the death of deceased 32 12 Report – consciousness of the deceased 34 13 Letter for recording Dying Declaration 35 14 Report for drawing panchnama to the FSL 36 15 Sections added report 37 16 Ravangi Nondh 38 17 Receipt of FSL 39 18 Forwarding letter and report of FSL 40 19 Complaint 42 20 Dying declaration 44 2.3 Thereafter, statements under Section 313 of the Code of Criminal Procedure were recorded, wherein the accused stated that they are innocent and they have not committed alleged offence and the evidence are not reliable, acceptable and trustworthy. After hearing at length and on perusal of the evidence on record, the learned Sessions Judge observed that the prosecution has proved the case against the accused beyond reasonable doubt and therefore, learned Sessions Judge passed the judgment and order as stated hereinabove. 3. Heard learned APP Mrs. Punani appearing for the appellant – State and learned advocates Mr. Buddhbhatti along with Ms. Krishna Mishra for the respondents. 4. Learned APP submitted that present appeal is preferred by the State against aforesaid impugned judgment and order and specifically, the acquittal for the offences punishable under Section 306 read with Section 114 of the Indian Penal Code. She further submitted that here in this case, dying declaration of the deceased was recorded by authorized person i.e. Executive Magistrate and the complaint was given by the deceased herself, even though, the learned Sessions Judge has not considered the said material aspects i.e. complaint and dying declaration, while passing impugned judgment and order. She read the complaint at Exhibit 42 and submitted that said complaint was lodged by the deceased herself after the incident, on 25.10.2004, wherein she stated that the respondents accused meted out cruelty upon her by keeping suspicion over her character. The deceased also stated that the appellant No.1 beaten her with the wooden piece used for washing the cloths. She read the complaint at Exhibit 42 and submitted that said complaint was lodged by the deceased herself after the incident, on 25.10.2004, wherein she stated that the respondents accused meted out cruelty upon her by keeping suspicion over her character. The deceased also stated that the appellant No.1 beaten her with the wooden piece used for washing the cloths. The respondent No.2 had thrown the household materials of the complainant outside the home and told the deceased to give divorce. The complaint also reveals that the respondents accused were harassing the deceased and therefore, the deceased decided to commit suicide. Therefore, the deceased poured kerosene on her own and set her at fire. Learned APP therefore, submitted that the respondents accused were suspecting about her character and they had also beaten her. Therefore, it can be said that the respondents accused were harassing and beating her and therefore, the deceased died by committing suicide. She read the evidence of P.W.6 Rajubhai Godse, P.W. 7 Savitaben, P.W. 8 Narayan Agarwal, P.W.9 Mayuriben, P.W.10 Kalidas Mali and P.W.11 Madhuben and submitted that all these witnesses in their respective evidence stated that due to stove burst, the deceased died, but, later on, all these witnesses turned hostile. But, from the statement before the police, these witnesses did not state about said accident. Learned APP further submitted that looking to the panchnama, the stove was found as it was and it was not burst and even it was empty i.e. without kerosene. She further submitted that looking to the evidence of Dr. Vaishakhi, it appears that the burning of deceased was from first degree to third degree and looking to the P.M. note, it appears that the reason for death is not accident, but it appears that the deceased on her own poured kerosene and fired her. Learned APP read the dying declaration of the deceased, which was recorded by the Executive Magistrate, Rohitkumar Variya, who is P.W.15, wherein it was stated by the deceased that due to harassment caused by the accused, i.e. her mother-in-law and her husband and even she was beaten by them, she poured kerosene on her own. Learned APP further submitted that said P.W.15, Rohitkumar also stated in his evidence that the respondents were suspecting about the character of the deceased and therefore, quarrel took place between them. Learned APP further submitted that said P.W.15, Rohitkumar also stated in his evidence that the respondents were suspecting about the character of the deceased and therefore, quarrel took place between them. It also reveals from his evidence that the respondents accused were harassing and beating the deceased. This witness also stated that before recording dying declaration, he verified from the Doctor about consciousness of the deceased and said Doctor endorsed same at Exhibit 35. Learned APP read other evidence of the witnesses, but as per her submission, the complaint, dying declaration and evidence of P.W.15, Executive Magistrate, are sufficient to prove the case against the accused so far as abetting the deceased in committing suicide. Therefore, she submitted that the ingredients of the alleged offence can be said to be proved against the respondents accused. But the learned Sessions Judge has not considered the main material documents i.e. dying declaration and complaint of the deceased during the course of medical treatment. Learned APP in this connection, relied upon the decision in the case of Laxman Vs. State of Maharashtra reported in GLH 2003(1) Vol. XLIV (1), wherein Hon’ble Supreme Court held that “where it is proved by testimony of Magistrate that declarant was to fit to make the statement even without examination by the Doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful.” Learned APP, therefore, submitted that the same dying declaration was required to be considered in true and right spirit by the learned Sessions Judge. Learned APP lastly prayed to allow present appeal by quashing and setting aside the impugned judgment and order and the respondents are required to be convicted and sentenced for the offences punishable under Sections 498(A) and 306 read with Section 114 of the Indian Penal Code. 5. As against, learned advocate Mr. Buddhbhatti along with learned advocate Ms. Mishra appearing for the respondents submitted that the witnesses i.e. P.W.6 Rajubhai Godse, P.W. 7 Savitaben, P.W. 8 Narayan Agarwal, P.W.9 Mayuriben, P.W.10 Kalidas Mali and P.W.11 Madhuben examined by the prosecution, who are relatives of the deceased and the said witnesses themselves declared hostile, then there is no question of alleged offences against the accused and therefore, learned advocates submitted that learned Sessions Judge wrongly convicted and sentenced the respondent No.1 without there being any cogent evidence. So, the impugned judgment and order is required to be quashed and set aside and so far as respondent No.1 is required to be acquitted for the offence punishable under Section 498-A of the Indian Penal Code. Learned advocates submitted that even when the recording of the dying declaration, the deceased was not in fit mind to give her statement. They also submitted that the deceased sustained burn injuries on overall her body and therefore, she was not in condition to give her statement in form of dying declaration. Learned advocates further submitted that the deceased sustained injuries due to stove burst and therefore, she died and hence, it is not a case of suicide. Learned advocates further submitted that the documents produced on record, are not corroborating the evidence of the witnesses examined by the prosecution and there are so many contradictions. Learned advocates further submitted that P.W. 15, Executive Magistrate, examined by the prosecution, recorded the dying declaration of the deceased, but the deceased was not in fit condition to give statement and therefore, the evidence of this witness cannot be believed. Learned advocates further submitted that looking to overall evidence, it is not established that the accused abetted or instigated the deceased to commit suicide and died or it is also not established that the respondents were harassing the deceased by torturing or beating by suspecting about her character. They also submitted that looking to the dispute, the respondents were suspecting over the character of the deceased, but what type of suspicious on the part of the respondents accused is not proved by the prosecution. 6. Learned advocates for the respondents submitted that learned Sessions Judge has rightly acquitted the respondents accused for the charges levelled under Section 306 of the Indian Penal Code because the offence as alleged is not established by the prosecution by any cogent evidence. In support their submission, they relied upon the case of Hans Raj. Vs. State of Haryana reported in AIR 2004 Supreme Court 2790 and submitted that presumption under Section 113A of the Evidence Act could not be invoked to find accused husband guilty of offence under Section 306 of the Indian Penal Code. In support their submission, they relied upon the case of Hans Raj. Vs. State of Haryana reported in AIR 2004 Supreme Court 2790 and submitted that presumption under Section 113A of the Evidence Act could not be invoked to find accused husband guilty of offence under Section 306 of the Indian Penal Code. Therefore, in the instant case, when the offence under Section 306 of the Indian Penal Code is not proved against the accused, then here there is no question of convicting the accused for the said alleged offence. The learned advocates further submitted that in the present case, the alleged offence is not established against the accused by the prosecution and the witnesses were declared hostile and the version of the witnesses for the cause for death is bursting of stove come out from the oral evidence, the respondent No.1 is required to be acquitted for alleged offence under Section 498 A of the Indian Penal Code. Lastly, the learned advocates submitted that the appeal is required to be dismissed. 7. Heard both the parties and perused the record of the case. I have also minutely perused the impugned judgment and order of conviction passed by the learned Sessions Judge. 8. Now, here, looking to the complaint, it reveals that the deceased was harassed by the respondents accused and she was beaten by wooden piece used for washing cloth and the respondent No.2 forced the deceased to give divorce. Therefore, the deceased poured kerosene on her and set her at fire. Here the question is required to be considered such that the deceased gave birth two children out of her wedlock and even though she committed suicide by leaving them on their position. Other aspect is the evidence of the witnesses i.e. P.W.6 Rajubhai Godse, P.W. 7 Savitaben, P.W. 8 Narayan Agarwal, P.W.9 Mayuriben, P.W.10 Kalidas Mali and P.W.11 Madhuben are relatives of the deceased but they turned hostile and they have not supported the prosecution case. Here the material aspect is such that the complaint which was lodged by the complainant herself before the Assistant Police Commissioner, “C” Division Police Station, Vadodara, on 25.10.2004, wherein the deceased stated that the accused meted out cruelty on her and she was beaten and told her to give divorce to the appellant No.1. Here the material aspect is such that the complaint which was lodged by the complainant herself before the Assistant Police Commissioner, “C” Division Police Station, Vadodara, on 25.10.2004, wherein the deceased stated that the accused meted out cruelty on her and she was beaten and told her to give divorce to the appellant No.1. She also stated that the respondents accused were suspecting about her character and therefore, they were harassing her. Therefore, she poured kerosene on her and set her at fire. This complaint was given by the deceased herself against the accused. Secondly, the dying declaration which was recorded by the P.W.15, Rohitkumar Variya, Executive Magistrate, clearly states the aforesaid version given by the deceased. It is also established fact that the cause of death is not stove burst or accident, because the stove was not damaged by any side and if the same was burst, then it was not stated in the Panchnama. I have minutely perused the evidence of the witnesses and documentary evidence produced on record. I have also perused the yadi at Exhibit 35 which was addressed to the Sub Divisional Magistrate, Vadodara City informing to record dying declaration of the deceased. From the evidence of P.W.15, Rohitkumar Variya, Executive Magistrate, it appears that the Doctor endorsed that the deceased was in fit state of mind and capable to give her dying declaration. Therefore, it cannot be said that the deceased was not fit to give her statement at the relevant point of time while recording her dying declaration before the Executive Magistrate. Therefore, it clearly appears that the complaint, dying declaration and oral evidence of P.W.15 are leading to prove the offence against the accused. From the various decisions of the Hon’ble Supreme Court as well as High Court, dying declaration can be considered as the base of the conviction. For the said purpose, I have considered the ratio laid down in the case of Patel Hiralal Joitaram Vs. State of Gujarat reported in AIR 2001 SC 2944 , wherein it is observed that : “Section 32(1) relates tot eh statement made by a person before his death. Two categories of statement are made admissible in evidence and further made them as substantive evidence. They are: (1) His statement as to the cause of his death; (2) His statement as to any of the circumstances of the transaction which resulted in his death. Two categories of statement are made admissible in evidence and further made them as substantive evidence. They are: (1) His statement as to the cause of his death; (2) His statement as to any of the circumstances of the transaction which resulted in his death. The second category can envelope a far wider amplitude than the first category. The words statement as to any of the circumstances are by themselves capable of expanding the width and contours of the scope of admissibility. When the word circumstances is linked to transaction which resulted in his death the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the subsection. As the possibility of getting the maker of the statements in flesh and blood has been closed once and for all the endeavour should be how to include the statement of a dead person within the sweep of the sub-section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the court has to consider how far it is reliable. Once that test of reliability is found positive the court has to consider the utility of that statement in the particular case. 9. In another case of Bhola Turha Vs. State of Bihar reported in AIR 1998 SC 1515 , it observed by the Hon’ble Supreme Court as under : “Dying declaration was made by the deceased within about two hours from the incident and a few hours before his death. In his dying declaration, he has clearly explained how he came to be injured by the appellant. The eye witness did not support the prosecution and were declared hostile. Courts below were fully justified in replying upon the dying declaration and convicting the appellant.” 10. Now, here in this case, the complaint as well as dying declaration were given by the deceased herself and therefore, it cannot be discarded as it has evidentary value for deciding the main factor of abetment, instigation in the case of committing the suicide by the deceased. 11. Another case of Shanmugam Vs. Now, here in this case, the complaint as well as dying declaration were given by the deceased herself and therefore, it cannot be discarded as it has evidentary value for deciding the main factor of abetment, instigation in the case of committing the suicide by the deceased. 11. Another case of Shanmugam Vs. State of Tamil Nadu reported in AIR 2003 SC 209 , wherein the Hon’ble Supreme Court observed as under : “That the dying declaration can form the sole basis for conviction is too well settled by a catena of decisions. The dying declaration clearly implicates the accused. The dying declaration in Ex. P. 16 contains the questions and relevant details of the incident. There are no suspicious features which affect the credibility of the dying declaration. There is no apparent reason why the deceased should think of want only roping in his brother in the murderous attack. The mere fact that the victim did not make any reference to the injuries received by the accused is not a ground that merits rejection of dying declaration. The Judicial Magistrate who was examined as P.W.11 categorically stated that he satisfied himself that the victim was conscious and was in a position to make the statement and he also made an endorsement on P. 16 about the consciousness of the patient. There mere fact that the Doctor in whose presence Ex P. 16 was recoded was not examined does not affect the evidentiary value to be attached to the dying declaration.” 12. In another case of Ramavati Vs. State of Bihar reported in AIR 1983 SC 164 , wherein it is observed by the Hon’ble Supreme Court as under : “Dying declaration recorded by the Police Sub-Inspector is admissible and can be relied for conviction. It is significant to note that in the course of cross-examination of the witness proving the dying declaration, no questions were put as to the state of health of the deceased and no suggestion was made that the deceased was not in a fit state of health to make any such statement. The doctor's evidence also clearly indicates that it was possible for the deceased to make the statement attributed to her in the dying declaration in which her thumb impression had also been affixed. The doctor's evidence also clearly indicates that it was possible for the deceased to make the statement attributed to her in the dying declaration in which her thumb impression had also been affixed. In the instant case, it cannot also be said that there is no corroborative evidence of the statement contained in the dying declaration. The evidence of P. Ws. 1, 4, 5 and 8 clearly corroborates the statement recorded in the dying declaration, we do not find any material on record on the basis of which the testimony of these witnesses can be disbelieved. It may also be noticed that none of these witnesses including the Police Officer who recorded the Statement could be attributed with any kind of ill-feeling against the accused.” 13. In the case of State of Assam Vs. Muhim Barkatari reported in AIR 1987 SC 98 , it is held by the Hon’ble Supreme Court that “the deceased had sense and he was speaking. There was no cross-examination on this point. Meaning thereby, the dying declaration is relied upon for the base of conviction and sentence. Here, in this case, the deceased gave her dying declaration before the Executive Magistrate stating that due to harassment of the respondents accused, she committed suicide. In support of her said dying declaration, the complaint can be said as proved. 14. Looking to the aforesaid all the decisions of the Hon’ble Supreme Court, it clearly appears that the dying declaration is material and important document for holding the accused guilty. So, I am of the opinion that in the present case, same can be considered as base for ascertaining the role on the part of the accused persons as stated by the deceased in her complaint as well as in the dying declaration and same are said to be trustworthy and reliable as they are corroborating each other. 15. From the perusal of the case, it appears that the marriage life of the accused No.1 and deceased was of 10 years. In the present case, the deceased when she was neglected by her husband and her mother-in-law by saying to give divorce, means that the accused meted out cruelty and thereby abetted the deceased to commit suicide. It is natural that a lady, who is having minor children, may not think to commit suicide. In the present case, the deceased when she was neglected by her husband and her mother-in-law by saying to give divorce, means that the accused meted out cruelty and thereby abetted the deceased to commit suicide. It is natural that a lady, who is having minor children, may not think to commit suicide. This behaviour of the accused shows that there was tremendous provocation on the part of the accused which led the deceased to commit suicide. Here in this case, the accused had not committed only mental cruelty, but he also meted out physical cruelty to the deceased and therefore, the deceased took decision to end her life by committing suicide. Said ingredients of provocation, instigation are covered by Section 306 of the Indian Penal Code are proved by the prosecution beyond reasonable doubt. I have perused the provisions of Section 306 and 498-A as well as Section 107 and 108 of the Indian Penal Code as well as also perused provisions of Section 113-A of the Evidence Act and I have perused the difference of the provisions of laws. Here in the present case, the willful conduct on the part of the accused is proved, as the accused intentionally caused torture to the deceased, which was driven the wife to commit suicide. The cruelty is sufficiently proved against the accused as per the provisions of Section 498(A) of the Indian Penal Code. Therefore, it can be said that cruelty on the part of the husband is proved by the provisions of Section 113(A) of the Evidence Act, as abetment on the part of the husband and his mother, accused led the wife to commit suicide. Abetment means a person abets the doing of a thing who instigates a person to do that thing. Here in this case, there is no any irregularity or ambiguity in the dying declaration, as the same was given by the deceased in her absolute conscious position as stated by the P.W.15 Rohitkumar, Executive Magistrate, who recorded dying declaration and she was fit to give the statement before him and also she gave her complaint in very conscious position before the police. Therefore, there is no question to discard this evidence given by the deceased herself before dying in the hospital. Therefore, the alleged offence against the accused is very well proved. 16. Therefore, there is no question to discard this evidence given by the deceased herself before dying in the hospital. Therefore, the alleged offence against the accused is very well proved. 16. In various decisions of Hon’ble Apex Court made observation that punishment should not be so lenient that it shocks the conscience of the society being abhorrent to the basic principles of sentencing. Therefore, it is clear that the accused is required to be punished for his offence and for such purpose, the lenient view should not be taken by the Court while sentencing the accused for the alleged offence which is committed by him and same is proved against him. 17. In view of the above, I am of the opinion that the accused abetted or provoked the deceased to commit suicide and died and therefore, the accused are required to be convicted as they are not innocent persons. The accused caused cruelty upon her by beating with the wooden piece used for washing cloth and taunting her. Thereafter, the incident was occurred and during the course of medical treatment, the deceased narrated in her complaint as well as dying declaration about the cruelty meted out by the accused husband and her mother-in-law. In these circumstances, the accused is liable to be convicted and sentenced for the alleged offence. 18. I have taken into consideration the provisions of Section 306 and 498-A of the Indian Penal Code which are quoted as under : “Section 306 : Abetment of Suicide – if any person commits suicide, whoever, abets the commission of the suicide, shall be punished with imprisonment of either description for a term which may extent to ten years and shall also be liable to fine. “Section 498-A : Husband or relative of husband of a woman subject her to cruelty – whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to find.” 19. From the bare reading of Section 498-A of the Indian Penal Code, it is clear that if the husband or relative of the husband of a woman subject such woman to cruelty, they shall be liable for punishment mentioned therein. From the bare reading of Section 498-A of the Indian Penal Code, it is clear that if the husband or relative of the husband of a woman subject such woman to cruelty, they shall be liable for punishment mentioned therein. Moreover, the Explanation to Section 498-A Indian Penal Code defines “cruelty” for the purpose of Section 498-A IPC to mean (a) any will conduct which is of such a nature as is 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 (b) harassment of the woman where such harassment, is with a view to concerning her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. A reading of Section 113-A of the Evidence Act, 1872 will show that for the purpose of Section 113-A, the “cruelty” shall have the same meaning as in Section 498A of Indian Penal Code. I have also perused the provisions of Section 107 and 108 of the Evidence Act in connection of the evidence produced by the prosecution. 20. Here in present case, no doubt the learned Sessions Judge convicted the accused persons for the offence punishable under Section 498-A of the Indian Penal Code and sentenced simple imprisonment for one year and to pay a fine of Rs.200/- each, in default, further S.I. for one month. Thereafter, the learned Sessions Judge acquitted the accused No.2 by considering the provisions of Section 360 of the Indian Penal Code or gave the benefit of probation under the provisions of Section 4, 1, 3 of the Probation of Offenders Act. From the bare reading of the operative order portion, it appears that the learned Sessions Judge has held the respondent No.1 guilty, but, not awarded sentence by ordering that no separate sentence is required to be awarded to the accused No.1 for the offence punishable under Section 306 of the Indian Penal Code. From the bare reading of the operative order portion, it appears that the learned Sessions Judge has held the respondent No.1 guilty, but, not awarded sentence by ordering that no separate sentence is required to be awarded to the accused No.1 for the offence punishable under Section 306 of the Indian Penal Code. Therefore, it is crystal clear that the both accused were held guilty for the alleged offence, no doubt, learned Sessions Judge by considering age and responsibility of the children of the accused No.1, granted bail by suspending the aforesaid sentence and under the provisions of Section 360 of the Code of Criminal Procedure or Sections 4, 1, 3 of the Probation of Offenders Act, and imposed some conditions. 21. In view of the above operative portion of the impugned judgment and order passed by the learned Sessions Judge, it appears that the learned Sessions Judge has committed grave error in imposing sentence to the accused persons, specifically, the benefits was given to the accused No.2. Therefore, the impugned judgment and order passed by the learned Sessions Judge is required to be quashed and set aside. Here, it is established fact that the accused committed alleged offence, which is proved by the judgment and order of the learned Sessions Judge and therefore, the accused are required to be punished for the alleged offence. Hence, this Court pass following order : (a) Present Appeal is allowed. (b) The judgment and order dated 24.6.2005 passed by the learned Additional Sessions Judge and Fast Track Court No.6, Vadodara, in Sessions Case No.13 of 2005, is hereby quashed and set aside. c) The respondents – accused are convicted for the offence punishable under Section 306 of the Indian Penal Code, and to undergo sentence of 7 years R.I. and to pay fine of Rs.2,000/-each, in default, further one year R.I. (d) So far as sentence imposed upon the respondent No.1 by the learned Sessions Judge for the offence punishable under Section 498(A) of the Indian Penal Code is concerned, same shall remain unaltered. (e) The respondent No.2 is convicted for the offence punishable under Section 498(A) of the Indian Penal Code, and to undergo sentence of 1 years S.I. and to pay fine of Rs.2,00/-, in default, further one month S.I. (f) The period during which the accused remained in prison, shall be given set off. (e) The respondent No.2 is convicted for the offence punishable under Section 498(A) of the Indian Penal Code, and to undergo sentence of 1 years S.I. and to pay fine of Rs.2,00/-, in default, further one month S.I. (f) The period during which the accused remained in prison, shall be given set off. (g) All the sentences shall run concurrently. (h) The respondents – accused are hereby ordered to surrender before the concerned Jail Authority within a period of four weeks from today. Their bail bonds stand cancelled. (i) R & P to be sent back to the concerned trial court forthwith.