The judgment established the importance of the proximate and live link between cruelty based on dowry demand and the death of the deceased, and the liability of the appellant for abetting the suicide of the deceased.

1. Their Lordships in the Division Bench could not reach a consensus as to the culpability of appellant Rajesh Kumar Kaushik, and therefore, by order dated 19-9-2014, the appeal was directed to be laid before third judge in terms of Sections 370 and 392 of the Code of Criminal Procedure, 1973 (for short 'the Code'). Order of reference reads thus,

“There is a difference of opinion between us. One of us has convicted the Appellant and the other has acquitted him. In view of this, the matter be placed before the third judge for opinion, after nomination.”

2. By order dated 16-10-2014, Hon'ble the Acting Chief Justice directed the matter to be placed before this Bench.

3. Section 392 of the Code reads as –

“392. Procedure where Judges of Court of Appeal are equally divided.-When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion:

Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be re-heard and decided by a larger Bench of Judges.”

4. Law relating to the scope of powers and jurisdiction of third judge in reference under Section 392 of the Code is no longer res integra as the same has been settled by the Supreme Court and several High Courts, Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156; Babu v. State of U.P., AIR 1965 SC 1467 : (1965) 2 SCR 771; Hethuba v. State of Gujarat, (1970) 1 SCC 720 : 1970 SCC (Cri) 280 : AIR 1970 SC 1266; Union of India v. B.N. Ananti Padmanabiah, (1971) 3 SCC 278 : 1971 SCC (Cri) 535 : AIR 1971 SC 1836; State of A.P. v. P.T. Appaiah, (1980) 4 SCC 316 : 1980 SCC (Cri) 960 : AIR 1981 SC 365; Balku v. Emperor, AIR 1948 All 237 : 1948 All LJ 102 : 49 Cri LJ 264; Nemai Mondal v. State of West Bengal, AIR 1966 Cal 194 : 1966 Cri LJ 522; Dharam Singh v. State of U.P., 1964 (1) Cri LJ 78 : 1962 All LJ 748 (SC); State of U.P. v. Dan Singh and others, (1997) 3 SCC 747; Sajjan Singh and others v. State of M.P., (1999) 1 SCC 315; Shriram Pandey and others v. State of M.P. (now State of C.G.), 2013 (3) CGLJ 28.

Law on the subject of reference under Section 392 of the Code is that while making reference of appeal to third Judge, the appeal as a whole is required to be laid before the third judge. The third Judge is required to examine independently the entire case including the points on which the two Judges of the Division Bench had concurred. The third Judge is not bound by the opinion of the Division Bench. His position is not that of a Judge sitting in a three Judge Bench where majority opinion prevails. The third Judge is free to decide the appeal by resolving the differences in the manner he thinks proper. His opinion is rather the material one and against the judgment that follows therefrom an appeal lies. The third judge is not obliged, either as a rule of prudence or on the score of judicial etiquette, to accept the view of either or both of the Judges, even on points where there is no difference of opinion.

5. In the light of aforesaid proposition of law, I have heard the appeal filed on behalf of the appellant.

6. The appellant has preferred the appeal against the judgment of conviction and order of sentence dated 28-4-2000 passed by the 2nd Additional Sessions Judge, Bilaspur in Sessions Trial No.1/2000, whereby while acquitting two other co-accused namely Malluram Kaushik & Smt. Kaveri Bai, father & mother of the appellant, of the charges under Sections 498A & 304B of the IPC, convicted the appellant/husband under Sections 498A & 304B of the IPC and sentenced him to undergo RI for two years & pay fine of Rs.1,000/-and imprisonment for life & fine of Rs.2,000/-, in default, additional i