JUDGMENT : Sudhanshu Dhulia, J. All these appeals arise out of the judgment and order dated 17.11.2016 passed by the First Additional Sessions Judge, Haldwani, Nainital in Sessions Trial No.123 of 2014, State vs. Manoj Nainwal, wherein the accused/appellant has been convicted under Section 498-A IPC and under Section 306 IPC and has been sentenced for rigorous imprisonment for a period of three years with a fine of Rs.5,000/-(Rupees Five Thousand Only) under Section 498-A IPC and sentenced to undergo rigorous imprisonment for a period of seven years with a fine of Rs.10,000/-(Rupees Ten Thousand Only) under Section 306 IPC, respectively. The sentences are to run concurrently. He has been acquitted under Section 304-B IPC. 2. Criminal Appeal No. 410 of 2016 has been filed by the brother of the deceased and Government Appeal No.52 of 2017 has been filed by the State under Section 372 CrPC against acquittal of the accused under Section 304-B IPC. 3. A 25 year old married woman, having a two year old child, at the relevant time, died in her matrimonial home on 08.06.2014. The prosecution case is that she was administered poison at the hands of her husband and in-laws. The charge-sheet was, however, filed only against the husband. Subsequently, charges were framed against the accused/appellant under Sections 304-B and 498-A of IPC as well as under Section 3/4 of the Dowry Prohibition Act by the First Additional Sessions Judge, Haldwani vide order dated 12.12.2014. The accused-appellant Manoj Nainwal was finally convicted by the trial court under Sections 306 and 498-A IPC. 4. Brief facts of the case are that the brother of the deceased, namely, Kamal Kishore lodged an FIR at Police Station Lal Kuan, Haldwani, District Nainital at 05:10 p.m. on 09.06.2014, stating that his elder sister Ms. Hema Nainwal, who was married to Manoj Nainwal (appellant in CRLA No.378 of 2016) on 20.11.2009, has been killed by her husband and in-laws. It was said that as per the demands of the family of the bridegroom at the time of the marriage, a television set, motorcycle and other household items were given as gift, but the in-laws of his sister were greedy and they were not satisfied and continued to demand a dowry of Rupees one lakh. As a consequence of which, his sister was daily tortured, harassed and even beaten up by her in-laws and husband. As a consequence of which, his sister was daily tortured, harassed and even beaten up by her in-laws and husband. On more than one occasion they had decided to lodge an FIR, but on second thought refrained from doing so as that would finish the married life of his sister. 5. Out of the wedlock, his sister has given birth to a boy child who was about 2 years of age. On 08.06.2014, his sister had come in a marriage ceremony at “Katgariya”, Haldwani along with her husband and son. During the marriage ceremony, his sister was publicly humiliated by her husband. He then walked away in the middle of the ceremony. His sister started crying, and later when he was going to drop his sister at her matrimonial home, apprehensions were also raised by his sister that her father-in-law, mother-in-law, husband and sister-in-law can kill her at any time. She said that they are demanding dowry and in the past as well they had tried to kill her. He reached the matrimonial house of his sister at about 9.00 pm. His sister went inside the house along with her son, but he was stopped at the gate by the brother-in-law of his sister and his cousin. Minutes later, his sister came running towards him and fell on her feet. She said that she has been administered poison by her husband and in-laws and she is going to die. Then she pleaded that he must take care of his son now as she is going to die. His sister was then taken to Sushila Tiwari Hospital, Haldwani where she was declared dead. On this, an FIR was lodged the next day on 09.06.2014 at about 05.10 pm at Police Station, Lal Kuan, Haldwani District Nainital. 6. The police after its investigation filed the charge-sheet only against the husband as they did not find any material against other family members. Thereafter, the matter was committed to the Sessions Court and subsequently charges were framed against the accused/appellant under Sections 498-A and 304-B of IPC as well as under Section 3/4 of the Dowry Prohibition Act. 7. 6. The police after its investigation filed the charge-sheet only against the husband as they did not find any material against other family members. Thereafter, the matter was committed to the Sessions Court and subsequently charges were framed against the accused/appellant under Sections 498-A and 304-B of IPC as well as under Section 3/4 of the Dowry Prohibition Act. 7. In order to prove its case, the prosecution has examined as many as 13 witnesses, out of which, the material witnesses for our appreciation would be PW1 Kamal Kishore i.e. the complainant, who is the brother of the deceased, PW2 Basanti Devi, who is the mother of the deceased, PW3 Deepak Naivaliya and PW6 Prakash Chandra Naivaliya, who are the brothers of the deceased and PW7 Tanuja Naivaliya, who is the sister-in-law of the deceased. PW5 Umesh Chandra and PW8 Ganesh Dutt Joshi are the witnesses of incident on 08.06.2014, where allegedly the accused/appellant had allegedly insulted his wife and had left the ceremony in the middle. 8. PW9 is Dr. C.P. Bhaisora who conducted the postmortem of the deceased. 9. PW1 is the informant and the brother of the deceased who reiterates the version given by him in the FIR. He narrates as to how his sister used to constantly complain to her parents and brothers about the ill treatment she received at the hands of her husband in her matrimonial house and about torture, cruelty and demand of dowry at the hands of her husband and in-laws. Then he says that on 08.06.2014 when his sister had come to attend a marriage ceremony, in her maternal family, in the “Tika” ceremony his sister was insulted by his brother-in-law (accused), who left the ceremony in middle and walked away. His sister started crying as she felt humiliated. Thereafter, he repeats as to how his sister confided in him as to the demand of dowry etc., at the hands of her husband and in-laws while she was being taken to her matrimonial house and how his sister was administered poison prior to her death. She was rushed to Sushila Tiwari Hospital, Haldwani, where the doctor had declared her dead. On the next date i.e. on 09.06.2014, an FIR was lodged by him. PW1 was then cross-examined. She was rushed to Sushila Tiwari Hospital, Haldwani, where the doctor had declared her dead. On the next date i.e. on 09.06.2014, an FIR was lodged by him. PW1 was then cross-examined. In his cross-examination, he states that his father is a retired Army person who retired as “Havildar” in the year 2003, and is no more. He then states their financial condition as to how much pension is being received by his mother, etc. His sister had studied upto high school and his brother-in-law i.e. the accused had done his education only till Class 8th. He reiterates the continuous demand of Rupees one lakh at the hands of her husband. He also states that after the incident, in the marriage ceremony on 08.06.2014, he first took his sister to her maternal house then to her matrimonial house. The distance from the venue of marriage to the maternal house of the deceased is 10 kilometers and the distance from her matrimonial house is also about 10 kilometers. In his cross-examination, he says that when he was stopped at the gate by the brother-in-law of the deceased, he stood there for 10 minutes. This witness further says that his sister came out of the house shouting that she is being killed by her husband and in-laws. He stayed at the house of his sister for about 15 to 20 minutes and then took her to Sushila Tiwari Hospital, Haldwani. He also admits that after the postmortem, the cremation was done by her in-laws. 10. PW2 Smt. Basant Devi is the mother of the deceased. She reiterates the prosecution case as regards demand of dowry and harassment and torture, etc. at the hands of the husband and the in laws of the deceased. She admits in her cross-examination that no incident of harassment and torture actually happened before her eyes. Moreover, she admits that she was not present on 08.06.2014 in the marriage function of the relative of the deceased. 11. PW 3 Deepak Naivaliya is the brother of the deceased, who was present on 08.06.2014 in the marriage function, where he states that there was some dispute between his brother-in-law and his sister regarding money and the accused Manoj Nainwal snatched the purse of his wife and walked away from the function, leaving his wife and son. 12. 11. PW 3 Deepak Naivaliya is the brother of the deceased, who was present on 08.06.2014 in the marriage function, where he states that there was some dispute between his brother-in-law and his sister regarding money and the accused Manoj Nainwal snatched the purse of his wife and walked away from the function, leaving his wife and son. 12. There are other witnesses to this incident on 08.06.2014 such as PW 8 Ganesh Dutt Joshi, who is the maternal uncle (“Mausa”) of the deceased. 13. From all the available evidences, it is absolutely clear that the relation between the deceased and the accused Manoj Nainwal was far from perfect. Yet whether there was a demand of dowry, immediately prior to the incident or there was harassment and torture regarding demand of dowry has not been established, as the statements of witnesses in this regard, such as PW 1, PW 2, PW 3, etc., are contradictory, and have been rightly appreciated as such by the trial court. 14. At the same time, the presence of accused Manoj Nainwal at the time of marriage ceremony on 08.06.2014 has been established. This has been admitted by him in his statement under Section 313 CrPC. Further all available evidences here also point out that the accused came to the marriage function along with his wife i.e. the deceased and his son. There was a fight regarding payment of “shagun”, to the bride, which was a normal custom. The husband i.e. the accused insulted his wife and left her in the middle of the function, and walked away. 15. Even though the demand of dowry has not been established, yet it is true that the relations between husband and wife were bitter. He insulted her on 08.06.2014, in front of her community of friends and relatives in a marriage function, which has been fully established. It is true that the available evidences though do not point out a case of 304-B of IPC, and the presumptions under Section 113-B of the Evidence Act, 1872 will also not be attracted. 16. He insulted her on 08.06.2014, in front of her community of friends and relatives in a marriage function, which has been fully established. It is true that the available evidences though do not point out a case of 304-B of IPC, and the presumptions under Section 113-B of the Evidence Act, 1872 will also not be attracted. 16. Section 113-B of the Evidence Act, 1872 reads as under : “113-B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.-For the purposes of this section, “dowry death” shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).” 17. It has not been established that, immediately prior to the death of the deceased, she was subjected to cruelty or harassment in connection with any demand of dowry. Hence presumption under Section 113-B of the Evidence Act would not lie. 18. From the same evidence, the case under Section 3/4 of the Dowry Prohibition Act is also not made out. 19. Having made the aforesaid determination, we uphold the conviction of the accused/appellant Manoj Nainwal under Section 306 IPC as well as under Section 498-A IPC as we are of the opinion that the act on the part of the appellant Manoj Nainwal was of a nature which amounts to cruelty as the deceased was humiliated in public, and this was the immediate cause of her suicide. The act on part of the appellant Manoj Nainwal amounts to an “abetment”. 20. The question now is only of sentence. The appellant has been sentenced to undergo rigorous imprisonment for a period of three years with a fine of Rs.5,000/- under Section 498-A IPC. We retain this sentence. 21. Section 498-A of IPC reads as under : “498-A. Husband or relative of husband of a woman subjecting 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 fine. Explanation. – 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 fine. Explanation. – For the purpose of this section, “cruelty” means – (a) any wilful 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 coercing 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.]” 22. Section 306 IPC reads as under :- “306. Abetment of Suicide. – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 23. Under Section 306 IPC maximum sentence can be 10 years. There is no minimum sentence prescribed. The appellant has been sentenced for 7 years of rigorous imprisonment. As far as sentence under Section 306 IPC is concerned, we are of the considered opinion that the sentence under Section 306 IPC is liable to be reduced to the sentence which has already been undergone, which is slightly more than three years. The reasons are as below. 24. Sentencing is an extremely important part of criminal justice system. Penologically speaking, the purpose of sentencing is deterrence and correction. A sentencing court has to be diligent and careful, but more importantly it should be conscious of all the factors, both aggravating as well as mitigating. Although, the Hon’ble Apex Court in the case of Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684 , was primarily dealing with the question of death sentence, yet it has an important bearing generally on question of sentencing. Although, the Hon’ble Apex Court in the case of Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684 , was primarily dealing with the question of death sentence, yet it has an important bearing generally on question of sentencing. In Bachan Singh case, it was said as under :- “A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.” 25. In the case of Sangeet and another v. State of Haryana, reported in (2013) 2 SCC 452 , it was said by the Hon’ble Supreme Court that whereas the aggravating circumstances relate to the crime, the mitigating circumstances relate to the criminal and in the sentencing process, both the crime as well as criminal are equally important. 26. Indeed, in the present case, there are certain mitigating factors, which in our opinion are worthy of our consideration. These are the mitigating factors in favour of the accused/appellant Manoj Nainwal. When the deceased consumed the poison, the accused/appellant had gone along with his brother-in-law to the hospital and made efforts, to save his wife. Most importantly, the deceased has left behind a two year old son, who is presently seven years of age and it has been stated at the Bar that he resides with his grandfather i.e. the father of the accused/appellant. The child needs the care and protection of his father. Appellant is also not a hardened criminal, and has no criminal history. All these would be mitigating circumstances in our view for which we reduce the sentence of the accused/appellant from 7 years to the sentence already undergone under Section 306 IPC. The fine shall remain as it is. 27. In view of the above, the Criminal Appeal No.378 of 2016 stands partly allowed. The judgment and order dated 17.11.2016 passed by the trial court is modified to the above extent. The accused/appellant is presently in jail, he shall be released forthwith, unless wanted in any other case. 28. The fine shall remain as it is. 27. In view of the above, the Criminal Appeal No.378 of 2016 stands partly allowed. The judgment and order dated 17.11.2016 passed by the trial court is modified to the above extent. The accused/appellant is presently in jail, he shall be released forthwith, unless wanted in any other case. 28. For the reasons given above, the Criminal Appeal No.410 of 2016 and Government Appeal No.52 of 2017 which have been filed for change of findings and enhancement of sentence of the accused/appellant Manoj Nainwal by victim and the State respondent are also dismissed. 29. Let the Registry forthwith inform the concerned jail authorities about this order.