Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1712 OF 2009
Pathan Hussain Basha … Appellant
Versus
State of A.P. … Respondent
WITH
CRIMINAL APPEAL NO. 1706 OF 2009
J U D G M E N T
Swatanter Kumar, J.
JUDGMENT
1. Accused Pathan Hussain Basha, was married to Pathan
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Haseena Begum (now deceased) on 23 June, 2002 at Guntur.
It was an arranged marriage. At the time of marriage, it was
promised that a dowry of Rs. 25,000/-, besides other formalities,
would be paid by the side of the wife to the husband. Out of this
amount, a sum of Rs. 15,000/- was paid at that time and it was
promised that the balance dowry of Rs. 10,000/- would be paid
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in the month of October, 2002, upon which the marriage was
performed.
2. The father of the bride could not pay the balance amount
within time, because he lacked the resources. The accused
Pathan Hussain Basha, his father Pathan Khadar Basha, and
mother Pathan Nazeer Abi forced her to get the balance amount
of dowry. Despite such pressure, she was not able to get that
money from her family. It is the case of the prosecution that for
non-payment of dowry, the accused persons harassed the
deceased and subjected her to cruelty. They even refused to
send her to her parental house. This was informed by the
deceased to various persons, including her relatives and elders.
She was unable to bear the cruelty to which she was subjected,
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by the accused persons. On 15 February, 2003, at about 11
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a.m., the deceased committed suicide by hanging herself in the
house of the accused.
3. When Pathan Basheerunnisa, LW3 returned from her work,
the accused sent her out giving her money to bring the soaps
upon which she went out and when she came back, she found
the accused absent and the bride hanging in the house.
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Subsequently, LW-3 Pathan Basheerunnisa sent her grandson
Pathan Inayatullah Khan, LW-4 to the house of the parents of the
deceased to inform them about the incident. When the parents
of the deceased came to the house of the accused and found the
deceased hanging from the beam with a saree, they untied her
and took her to the Government General Hospital, Guntur hoping
that the deceased may be alive. However, upon medical
examination by the doctor, she was declared brought dead.
4. The father of the deceased Pathan Yasin Khan, LW-1 and
her mother Pathan Shamshad Begum, LW-2 were present at
that time. LW-1, lodged the report, which was registered by Sri
K. Srinivasarao, LW-16, the Sub-Inspector of Police. The FIR
was registered under Section 304B and Section 498A of the
Indian Penal Code, 1860 (for short the “IPC”). Thereafter,
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investigation was conducted by one Shri P. Devadass, LW-17.
He inspected the site from where he recovered and seized the
saree that had been used for hanging. This was done in the
presence of LW-10 and LW-11, Shaik Ibrahim and Mohd.
Ghouse, respectively. Thereupon, the body was sent for post-
mortem examination through Constable P. Venkateswara Reddy,
LW-15. LW-17, P. Devdass, also took photographs of the scene.
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LW-13, Dr. M. Madhusudana Reddy conducted autopsy over the
body of the deceased and prepared post-mortem certificate giving
the cause of death as asphyxia, as a result of hanging.
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5. On 16 February, 2003, at about 5 p.m., Investigating
Officer arrested all the three accused persons. They faced the
trial and were convicted by learned Sixth Additional Munsif
Magistrate, Guntur for committing an offence under Sections
498A and 304B IPC.
6. They were committed to the Court of Sessions, Guntur
Division, Guntur for such an offence. They faced the trial and
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the learned Sessions Judge vide its judgment dated 4 October,
2004 found them guilty of the said offences and punished them
as follows:-
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“Hence A.1 to A.3 are sentenced to undergo
R.I. for THREE YEARS and further
sentenced to pay a fine of Rs. 1,000/- each
(total fine amount Rs. 3,000/-) offence
punishable u/s. 498-A IPC. I.D. of the fine
amount of Rs. 1000/- to undergo SI for 9
months. And further A.1 to A.3 are
sentenced to undergo imprisonment for
LIFE for the offence u/s. 304-B IPC. Both
the sentences shall run concurrently. The
undergone remand period of A.1 to A.3 shall
be set off u/s. 428 Cr.P.C. M.O.1 shall be
destroyed after expiry of appeal time. The
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unmarked property if any shall be destroyed
after expiry of appeal time.”
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7. The judgment dated 4 October, 2004 passed by the
learned Trial Court was challenged in appeal before the High
Court. The High Court of Andhra Pradesh, vide its judgment
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dated 26 October, 2006, while allowing the appeal in part,
convicted accused Nos.1 and 2 for the aforementioned offences,
however, acquitted accused No. 3, namely, Pathan Khadar
Basha. The sentence awarded by the Trial Court was confirmed.
This gave rise to filing of the present appeals.
8. First and the foremost, we must consider what is the
evidence led by the prosecution to bring home the guilt of
accused. Accused were charged with offences under Sections
498A and 304B of the IPC. The FIR in the present case was
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lodged by LW-1, who is the father of the deceased. According to
rd
this witness, on 23 January, 2002, the marriage of his daughter
was solemnised with accused Pathan Hussain Basha and he had
accepted to give Rs. 25,000/- in marriage. He had given only Rs.
15,000/- and had agreed to pay Rs. 10,000/-, after four months.
This witness has further specifically stated that the said accused
treated his daughter in a proper manner for about two months.
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In the marriage, he had also given a gold chain, a double bed, an
iron safe and other items. He had called his son-in-law, accused
No. 1, to his house, as per custom, at that point the accused
demanded a ceiling fan. A ceiling fan was lying with the witness
and he gave that to his son in law, however, he protested the
same on the ground that the old fan is not acceptable to him and
he would like to have a new fan, which was bought for Rs. 650/-
by the witness and given to his son-in-law. When he again
invited his son-in-law and the mother-in-law of his daughter,
even then he had gifted some presents to them. The accused
asked for Rs. 1,000/- with a ring for the deceased. The witness
could pay only Rs. 500/- upon which the accused refused to take
the deceased to the matrimonial home and went away. Later on,
the accused came to fetch deceased. Subsequently, the mother-
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in-law of the deceased, again, demanded the balance dowry
amount of Rs. 10,000/-, which he could not pay. His daughter,
after the Ramzan festival, had informed him that the accused
persons were harassing her and were even beating and abusing
her. All three accused used to beat her for the remaining
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amount of dowry. On 15 February, 2003, a boy had come to
him and told him that his daughter had died by hanging herself,
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whereupon he went to the house of the accused and found that
his daughter was hanged to a wooden beam with a saree and she
was dead. The saree was removed, she was taken to the hospital
where she was reported to have ‘brought dead’. The statement of
this witness i.e. LW-1 is corroborated by LW-3 and LW-7.
9. It is stated by LW-3 that she knew all the accused persons
as she was residing in the house of the accused and the
deceased. According to this witness also, in the beginning they
were happy, however after some time, she used to hear some
quarrel between the deceased and the accused persons. Accused
No. 2, Pathan Nazeer Abi had given her some amount and asked
her to go and bring the soaps. After bringing the soaps, she went
to the house of the accused persons and found that the accused
was absent and the deceased was hanging on one side of the
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room. After seeing this, she raised cries and people came to the
scene. LW-4, Pathan Inayatullah Khan, the grandson of LW-3,
went to the house of the parents of the deceased and informed
them about the unfortunate incident.
10. LW-7 stated on oath that he was present at the time of
giving of dowry to the accused by the family of the deceased. He
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confirmed the fact that Rs. 15,000/- was given at the time of
marriage and Rs. 10,000/- was to be given within some time,
which the father of the deceased failed to provide. According to
him, the accused persons used to harass the deceased primarily
for non-payment of the amount of dowry, as a result of which,
she was forced to commit suicide.
11. In fact, there is no dispute to the fact that the deceased died
of hanging. Dr. M. Madhusudana Reddy, LW-13 who was the
Associate Professor in Forensic Medicine at Guntur Medical
College, performed the post-mortem over the body of the
deceased. In the medical report, LW13, he noticed “Oblique
ligature mark of 17 x 2.5 cm present over front and left sides of
neck” as well as noticed “Abrasion 1.5 x 1 cm present over lower
part of middle of chin.” Injuries were found to be antemortem in
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nature, and the cause of death was stated to be asphyxia, as a
result of hanging
12. LW-14 is a witness to the seizure of the body and she
noticed injuries on the body of the deceased. From the above
evidence, it is clear that the dowry demands were being raised by
the accused persons persistently from the family of the deceased
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and for that they even harassed the deceased, by beating and
abusing her. She had informed her parents of the ill-treatment
and the cruelty inflicted on her for non-giving of dowry.
13. The period intervening between the marriage and the
death of the deceased is very small. They were married in
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the year 2002 and she committed suicide by hanging on 15
February, 2003. The witnesses, including LW-1 have stated that
for the first few months they were happy, but thereafter, there
were quarrels between the accused and the deceased. Accused
Pathan Hussain Basha, when he had gone to the parental house
of the deceased, demanded different items like fan, ring and Rs.
1,000/- in cash, and the balance of the agreed dowry amount.
Since, these demands were not satisfied instantaneously, he even
left the deceased at her parental house. At this stage, it will be
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appropriate for us to examine as to what are the ingredients of an
offence punishable under Section 304B of the IPC. In the case of
Biswajit Halder alias Babu Halder and Others v. State of W.B.
[(2008) 1 SCC 202], the Court stated the ingredients of this
provision as follows:-
“10. The basic ingredients to attract the provisions
of Section 304-B are as follows:
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( 1 ) the death of a woman should be caused by
burns or fatal injury or otherwise than under
normal circumstances;
( 2 ) such death should have occurred within
seven years of her marriage;
( 3 ) she must have been subjected to cruelty or
harassment by her husband or any relative of her
husband; and
( 4 ) such cruelty or harassment should be for or
in connection with demand for dowry.
11. Alongside insertion of Section 304-B in IPC,
the legislature also introduced Section 113-B of
the Evidence Act, which lays down when the
question as to whether a person has committed
the dowry death of a woman and it is shown that
soon before her death such woman had 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.
12. Explanation appended to Section 113-B
lays down that:
“For the purpose of this section, ‘dowry
death’ shall have the same meaning as in
Section 304-B of Indian Penal Code.”
JUDGMENT
13. If Section 304-B IPC is read together with
Section 113-B of the Evidence Act, a
comprehensive picture emerges that if a married
woman dies in unnatural circumstances at her
matrimonial home within 7 years from her
marriage and there are allegations of cruelty or
harassment upon such married woman for or in
connection with demand of dowry by the husband
or relatives of the husband, the case would
squarely come under “dowry death” and there
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shall be a presumption against the husband and
the relatives.”
14. Besides examining the ingredients of the provision, it would
also be necessary for us to examine the meaning and connotation
of the expressions ‘dowry death’, ‘soon before her death’ and ‘in
connection with, any demand for dowry’ as appearing in the said
section. Amongst others, lapse of time between the date of
marriage and the date of death is also a relevant consideration
for the Court while examining whether the essential ingredients
of the provision are satisfied or not in a given case. In the case of
Ashok Kumar v. State of Haryana [(2010) 12 SCC 350], this Court
explained these terms in some elucidation and the effect of the
deeming fiction appearing in the section, as follows:-
“11. The appellant was charged with an offence
under Section 304-B of the Code. This penal
section clearly spells out the basic ingredients
as well as the matters which are required to be
construed strictly and with significance to the
cases where death is caused by burns, bodily
injury or the death occurring otherwise than
under normal circumstances, in any manner,
within seven years of a marriage. It is the first
criteria which the prosecution must prove.
Secondly, that “soon before her death” she had
been subjected to cruelty or harassment by the
husband or any of the relatives of the husband
for, or in connection with, any demand for
dowry then such a death shall be called “dowry
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death” and the husband or the relative, as the
case may be, will be deemed to have caused
such a death. The Explanation to this section
requires that the expression “dowry” shall have
the same meaning as in Section 2 of the Act.
12. The definition of “dowry” under Section 2 of
the Act reads as under:
“2. Definition of dowry .—In this
Act, ‘dowry’ means any property or
valuable security given or agreed to
be given either directly or indirectly—
( a ) by one party to a marriage to
the other party to the marriage; or
( b ) by the parents of either party to
a marriage or by any other person, to
either party to the marriage or to any
other person,
at or before or any time after the
marriage in connection with the
marriage of the said parties, but does
not include dower or mahr in the case
of persons to whom the Muslim
Personal Law (Shariat) applies.
*
Explanation II .—The expression
‘valuable security’ has the same
meaning as in Section 30 of the Penal
Code (45 of 1860).”
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13. From the above definition it is clear that,
“dowry” means any property or valuable security
given or agreed to be given either directly or
indirectly by one party to another, by parents of
either party to each other or any other person at,
before, or at any time after the marriage and in
connection with the marriage of the said parties
but does not include dower or mahr under the
Muslim Personal Law. All the expressions used
under this section are of a very wide magnitude.
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14. The expressions “or any time after marriage”
and “in connection with the marriage of the said
parties” were introduced by the amending Act 63
of 1984 and Act 43 of 1986 with effect from 2-10-
1985 and 19-11-1986 respectively. These
amendments appear to have been made with the
intention to cover all demands at the time, before
and even after the marriage so far they were in
connection with the marriage of the said parties.
This clearly shows the intent of the legislature
that these expressions are of wide meaning and
scope. The expression “in connection with the
marriage” cannot be given a restricted or a
narrower meaning. The expression “in connection
with the marriage” even in common parlance and
on its plain language has to be understood
generally. The object being that everything,
which is offending at any time i.e. at, before or
after the marriage, would be covered under this
definition, but the demand of dowry has to be “in
connection with the marriage” and not so
customary that it would not attract, on the face
of it, the provisions of this section.
15. At this stage, it will be appropriate to refer to
certain examples showing what has and has not
been treated by the courts as “dowry”. This
Court, in Ran Singh v. State of Haryana , (2008) 4
SCC 700 held that the payments which are
customary payments, for example, given at the
time of birth of a child or other ceremonies as are
prevalent in the society or families to the
marriage, would not be covered under the
expression “dowry”.
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16. Again, in Satvir Singh v. State of Punjab ,
(2001)8 SCC 633 this Court held that the word
“dowry” should be any property or valuable given
or agreed to be given in connection with the
marriage. The customary payments in connection
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with birth of a child or other ceremonies are not
covered within the ambit of the word “dowry”.
17. This Court, in Madhu Sudan Malhotra v.
Kishore Chand Bhandari , 1988 Supp. SCC 424
held that furnishing of a list of ornaments and
other household articles such as refrigerator,
furniture and electrical appliances, etc. to the
parents or guardians of the bride, at the time of
settlement of the marriage, prima facie amounts
to demand of dowry within the meaning of
Section 2 of the Act. The definition of “dowry” is
not restricted to agreement or demand for
payment of dowry before and at the time of
marriage but even include subsequent demands,
was the dictum of this Court in State of A.P. v.
Raj Gopal Asawa, (2004)4 SCC 470.
18. The courts have also taken the view that
where the husband had demanded a specific
sum from his father-in-law and upon not being
given, harassed and tortured the wife and after
some days she died, such cases would clearly fall
within the definition of “dowry” under the Act.
Section 4 of the Act is the penal section and
demanding a “dowry”, as defined under Section 2
of the Act, is punishable under this section. As
already noticed, we need not deliberate on this
aspect, as the accused before us has neither
been charged nor punished for that offence. We
have examined the provisions of Section 2 of the
Act in a very limited sphere to deal with the
contentions raised in regard to the applicability
of the provisions of Section 304-B of the Code.
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19. We have already referred to the provisions of
Section 304-B of the Code and the most
significant expression used in the section is
“soon before her death”. In our view, the
expression “soon before her death” cannot be
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given a restricted or a narrower meaning. They
must be understood in their plain language and
with reference to their meaning in common
parlance. These are the provisions relating to
human behaviour and, therefore, cannot be given
such a narrower meaning, which would defeat
the very purpose of the provisions of the Act. Of
course, these are penal provisions and must
receive strict construction. But, even the rule of
strict construction requires that the provisions
have to be read in conjunction with other
relevant provisions and scheme of the Act.
Further, the interpretation given should be one
which would avoid absurd results on the one
hand and would further the object and cause of
the law so enacted on the other.
20. We are of the considered view that the
concept of reasonable time is the best criteria to
be applied for appreciation and examination of
such cases. This Court in Tarsem Singh v. State
of Punjab , (2008) 16 SCC 155 held that the
legislative object in providing such a radius of
time by employing the words “soon before her
death” is to emphasise the idea that her death
should, in all probabilities, has been the
aftermath of such cruelty or harassment. In
other words, there should be a reasonable, if not
direct, nexus between her death and the dowry-
related cruelty or harassment inflicted on her.
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21. Similar view was expressed by this Court in
Yashoda v. State of M.P , (2004)3 SCC 98 where
this Court stated that determination of the period
would depend on the facts and circumstances of
a given case. However, the expression would
normally imply that there has to be reasonable
time gap between t he cruelty inflicted and the
death in question. If this is so, the legislature in
its wisdom would have specified any period
which would attract the provisions of this
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section. However, there must be existence of
proximate link between the acts of cruelty along
with the demand of dowry and the death of the
victim. For want of any specific period, the
concept of reasonable period would be
applicable. Thus, the cruelty, harassment and
demand of dowry should not be so ancient,
whereafter, the couple and the family members
have lived happily and that it would result in
abuse of the said protection. Such demand or
harassment may not strictly and squarely fall
within the scope of these provisions unless
definite evidence was led to show to the contrary.
These matters, of course, will have to be
examined on the facts and circumstances of a
given case.
22 . The cruelty and harassment by the husband
or any relative could be directly relatable to or in
connection with, any demand for dowry. The
expression “demand for dowry” will have to be
construed ejusdem generis to the word
immediately preceding this expression. Similarly,
“in connection with the marriage” is an
expression which has to be given a wider
connotation. It is of some significance that these
expressions should be given appropriate meaning
to avoid undue harassment or advantage to
either of the parties. These are penal provisions
but ultimately these are the social legislations,
intended to control offences relating to the
society as a whole. Dowry is something which
existed in our country for a considerable time
and the legislature in its wisdom considered it
appropriate to enact the law relating to dowry
prohibition so as to ensure that any party to the
marriage is not harassed or treated with cruelty
for satisfaction of demands in consideration and
for subsistence of the marriage.
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23. The Court cannot ignore one of the cardinal
principles of criminal jurisprudence that a
suspect in the Indian law is entitled to the
protection of Article 20 of the Constitution of
India as well as has a presumption of innocence
in his favour. In other words, the rule of law
requires a person to be innocent till proved
guilty. The concept of deeming fiction is hardly
applicable to the criminal jurisprudence. In
contradistinction to this aspect, the legislature
has applied the concept of deeming fiction to the
provisions of Section 304-B. Where other
ingredients of Section 304-B are satisfied, in that
event, the husband or all relatives shall be
deemed to have caused her death. In other
words, the offence shall be deemed to have been
committed by fiction of law. Once the prosecution
proves its case with regard to the basic
ingredients of Section 304-B, the Court will
presume by deemed fiction of law that the
husband or the relatives complained of, has
caused her death. Such a presumption can be
drawn by the Court keeping in view the evidence
produced by the prosecution in support of the
substantive charge under Section 304-B of the
Code.
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15. Applying these principles to the facts of the present case, it
is clear that the ingredients of Section 304B read with Section
498A IPC are completely satisfied in the present case. By a
deeming fiction in law, the onus shifts on to the accused to prove
as to how the deceased died. It is for the accused to show that
the death of the deceased did not result from any cruelty or
demand of dowry by the accused persons. The accused did not
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care to explain as to how the death of his wife occurred. Denial
cannot be treated to be the discharge of onus. Onus has to be
discharged by leading proper and cogent evidence. It was
expected of the accused to explain as to how and why his wife
died, as well as his conduct immediately prior and subsequent to
the death of the deceased. Maintaining silence cannot be equated
to discharge of onus by the accused. In the present case, the
prosecution by reliable and cogent evidence has established the
guilt of the accused. There being no rebuttal thereto, there is no
occasion to interfere in the judgments of the courts under appeal.
16. The High Court acquitted Pathan Khadar Basha, the father-
in-law of the deceased, as there was no direct evidence against
him. His acquittal has not been challenged by the State before
us, thus, we are not called upon to discuss this aspect of the
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matter.
17. Accused Pathan Hussain Basha and Pathan Nazeer Abi
have rightly been found guilty of the offence by the courts.
While we see no reason to differ with the concurrent findings
recorded by the trial court and the High Court, we do see some
substance in the argument raised on behalf of the appellants that
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keeping in view the prosecution evidence, the attendant
circumstances, the age of the accused and the fact that they have
already being in jail for a considerable period, the Court may take
lenient view as far as the quantum of sentence is concerned.
The offences having been proved against the accused and keeping
in view the attendant circumstances, we are of the considered
view that ends of justice would be met, if the punishment
awarded to the appellants is reduced.
18. Consequently, we award ten years Rigorous Imprisonment
to the appellants. The appeals are partially accepted to the
extent afore-indicated.
………...….…………......................J.
(Swatanter Kumar)
JUDGMENT
………...….…………......................J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
August 16, 2012
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