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Judgment
M.G.Giratkar, J
The State has filed the present appeal challenging the Judgment of AdÂhoc Additional Sessions Judge No.4, Amravati in Sessions Trial No.50 of
1999 (old Sessions Trial No.24 of 1992), dt.12.4.2007, by which the respondents/accused came to be acquitted of the offences punishable under
Sections 498ÂA and 304ÂB r/w. Section 34 of the Indian Penal Code.
The case of prosecution against the accused/respondent can be summarized as under:
Deceased Kusum, daughter of complainant Gopal Ram Bharti was married with accused no.4 Pradeep Nimbhekar on 7.12.1989. Accused no.1
Vitthabai Nimbhekar is mother of accused no.4 Pradeep. Accused no.2 Neetu Nimbhekar is the sister and accused no.3 Ramesh is the brother of
accused no.4 Pradeep. After marriage of Kusum with accused no.4 Pradeep, she went to coÂhabit with him. She was treated properly for 1½
months after the marriage. However, thereafter, the accused persons started demanding fridge and motor cycle from deceased Kusum. Deceased
informed her father. Her father told her that he would make arrangement in that regard at the time of Diwali festival. Accused persons continued
illÂtreatment for their demand.
In the month of March, deceased Kusum had gone to attend the marriage of Balwant Giri at Akola. At that time, she informed the complainant/her
father about such harassment by accused persons. Complainant requested accused no.4 Pradeep not to illÂtreat the deceased. On 3.10.1990, the
complainant went to Daryapur to take Kusum with him for Diwali festival. At that time, members in the family were not present at their house.
Accused no.2 Neetu told the complainant that Kusum should be taken only after Fridge, Cooler and Motor cycle were given. Complainant went back
without taking Kusum with him. Deceased committed suicide by burning herself. In the night itself, father and brother of deceased reached to
Daryapur. In the morning, complainant lodged report. Police Inspector Patil went to the spot of incident, prepared spot panchanama, inquest
panchanama etc. He has recorded statement of witnesses. Thereafter, investigation was handed over to Crime Branch, Amravati. Further
investigation was carried out by Police Inspector Uttam Manikrao Solanke (PWÂ8). He has recorded statement of Kanchanmala on 7.3.1991 and
also recorded statement of Madhukar Hage on 16.3.1991. He also recorded supplementary statement of Gajanan Bharti on 19.3.1991. He has
recorded statement of Shamrao Gawande and Gajanan Bharati on 29.3.1991. After complete investigation, charge sheet was filed before the Judicial
Magistrate, First Class, who, in turn, committed the case to the Court of Sessions at Achalpur.
The said case was registered as Sessions Trial No.24 of 1992. The case was transferred to the Court of Sessions at Amravati and registered as
Sessions Trial No.50 of 1999. The trial Court framed Charge at Exh.3. Prosecution examined nine witnesses. Statement of accused were recorded.
They have denied material incriminating evidence. It is the defence of accused that, on the day of incident, complainant/father of the deceased came
to fetch her. The deceased was not ready to go with her father. Her father was insisting her to accompany him on the very same day. He scolded and
beat deceased Kusum. Therefore, in a fit of anger, Kusum committed suicide. To prove their defence, accused persons examined defence witness
Sharad Prabhakarao Wankhade (DWÂ1). After hearing prosecution and defence, learned trial Court acquitted all the accused of the offences
punishable under Sections 498ÂA and 304ÂB r/w. Section 34 of the Indian Penal Code. Hence, the present appeal by the State.
Heard Mr.J.Y.Ghurde, learned A.P.P. for the appellant/State. He has submitted that prosecution has proved by the evidence of Gopal Ram Bharti
(PWÂ1), Gajanan Gopal Bharati (PWÂ3) and Ramrao Bajirao Gawande (PWÂ4) that the accused persons illÂtreated the deceased for demand of
Fridge, Cooler, Motor cycle etc. Due to constant harassment/illÂtreatment of accused persons, deceased committed suicide. Learned A.P.P. has
submitted that the deceased was in the custody of accused persons. They have not explained as to how the deceased died. It is submitted that the
accused persons have not rebutted the presumption under Section 113B of the Indian Evidence Act. The learned A.P.P. has submitted that the
deceased died within one year from the date of marriage. Her death was unnatural, due to burn injuries. Prosecution has proved that death was due to
demand of dowry in the form of articles like Fridge, Cooler, Motor cycle etc. At last, the learned A.P.P. has submitted that prosecution has proved
the material ingredients of Sections 304ÂB and 498A of the Indian Penal Code. Hence, the learned A.P.P. prayed to allow the appeal and convict the
accused/respondents for the offences charged against them. In support of his submissions, learned A.P.P. has pointed out the following decisions:
a. State of Rajasthan .vs. Thakur Singh reported in 2014 LawSuit (SC) 501.
b. Pathan Hussain Basha .vs. State of Andhra Pradeshreported in (2012) 8 SCC 594.
c. Smt. Shanti and another .vs. State of Haryana reported in AIR 1991 SC 1226.
Heard Mr.Sumit Joshi, learned Counsel for the respondents/accused. He has submitted that prosecution has failed to show that there was any
cruelty or harassment for, or in connection with, any demand of dowry. Since prosecution failed to prove cruelty or harassment; therefore, the learned
trial Court rightly acquitted the accused persons.
Mr.Sumit Joshi, learned Counsel for the respondents has submitted that the deceased was residing with her husband at Warud. She was not
residing continuously at Daryapur. He has pointed out evidence of Ramrao Gawande (PWÂ4). Learned Counsel has submitted that prosecution has
failed to prove any of the ingredients of Sections 498ÂA and 304ÂB of the Indian Penal Code. Therefore, learned trial Court rightly acquitted the
accused persons. In support of his submission, learned Counsel for the respondents/accused pointed out the following decisions.
a) Biswajit Halder @ Babu Halder and Ors. vs. State of W.B. reported in 2007 ALL SCR 1596.
b) M.Srinivasulu .vs. State of A.P. reported in 2007 ALL MR (Cri) 2983 (S.C.).
c) Bakshish Ram and another .vs. State of Punjab reported in 2013 ALL SCR 2480.
d) Baijnath and Others .vs. State of Madhya Pradesh reported in 2017 ALL SCR (Cri) 104.
e) Dudh Nath Pandey .vs. State of U.P. Reported in 2014 ALL SCR (O.C.C.) 97.
f) Govindaraju @ Govinda .vs. State by Sriramapuram P.S. and another reported in 2012 ALL MR (Cri) 1385 (S.C.).
The evidence of Gopal Ram Bharati (PWÂ1) shows that accused no.4 Pradeep was in service in the S.T. Department. He was residing at
Warud. His evidence shows that, after marriage, the accused persons gave good treatment to deceased for about 1½ months. Thereafter, they
started demanding Fridge and Motor cycle. He has stated that when deceased Kusum met him in the marriage of Bhagwat, at that time, she disclosed
him about the trouble given to her by inÂlaws. Thereafter, he went to the house of accused persons to fetch the deceased for Akhadi festival. At that
time, deceased Kusum came to his house. She disclosed him that she was having much trouble from all the four accused. Her husband Pradeep had
been to their house to take back the deceased. Thereafter, he went to Daryapur and convinced the accused that they should not give trouble to his
daughter. Except this, there is no other evidence to prove cruelty by the accused persons.
Brother of deceased namely Gajanan Gopal Bharati (PW3) has stated in his evidence that he brought the deceased after death of her fatherÂinÂ‐
law. But she did not disclose anything. When she met in the marriage of Bhagwat, at that time she disclosed that her sisterÂinÂlaw Neeta, motherÂ‐
inÂlaw Vitthabai and elder brotherÂinlaw Ramesh used to say her that her brother did not give anything to her, but he had given only scrap. She
disclosed that they were demanding Fridge and Motor cycle. She also stated that the members in the family of accused used to offer her food at the
end. Whenever her matrimonial relations used to give new saree to her, her sisterÂinÂlaw and motherÂinÂlaw used to wear it. Gajanan (PWÂ3)
convinced her. Thereafter, he came to know about death of deceased. Except evidence of Gopal (PWÂ1) and Gajanan (PWÂ3) and to some extent,
evidence of Ramrao (PWÂ4), no other evidence is adduced by prosecution to prove the guilt of accused persons on account of demand of Fridge and
Motor cycle.
Ramrao Gawande (PWÂ4) has stated in his evidence that he called family members of deceased after death of her fatherÂinlaw. At that time,
she told him that there was demand of Hero Honda from her inÂlaws. At that time, accused Vitthabai was saying that though brother of Kusum was
on higher posting, still he has not given utensils like Cooker. Friends of Pradeep stated that he could not get Hero Honda. At that time, he had given
Cooker as a gift.
From the evidence of Gopal (PWÂ1), Gajanan (PWÂ3) and Ramrao (PWÂ4), it is clear that their evidence are not consistent with each other.
Gopal (PWÂ1) has stated that the deceased has disclosed him about the harassment by her motherÂinÂlaw, sisterÂinlaw and brotherÂinÂlaw. All
three witnesses have not stated a single word against the husband of deceased. Evidence of Gopal (PWÂ1) and Gajanan (PWÂ3) shows that when
the deceased had been to marriage of Bhagwat at Akola, at that time she complained that the accused persons were demanding Fridge and Motor
cycle. At that time, her husband Pradeep/accused no.4 was with her. Gopal (PW1) himself has stated in his examinationÂinÂchief that Pradeep did
not ask him about the same. Gajanan (PWÂ3) also stated that her husband was with her. It was the natural reaction of father and brother of the
deceased to inquire from her husband about illtreatment and their demand of Fridge and Motor cycle etc. Both the witnesses have not stated anything
about the illÂtreatment on account of demand of Fridge and Motor cycle against accused no.4 Pradeep. They did not inquire from her husband about
the demand of Motor cycle and Fridge.
Ramrao (PWÂ4) has stated in his evidence that he was residing at Daryapur and working in S.T. Department. Gajanan (PW3) was the Superior
Officer when he was working at Akola in S.T. Department. He was mediator in the marriage of the deceased and accused Pradeep. He called
family members of deceased after death of her fatherÂinÂlaw. At that time, the deceased told him that she was having illÂtreatment at the hands of
motherÂinÂlaw Vitthabai, sisterinÂlaw Neetu and elder brotherÂinÂlaw Ramesh. She stated that there was demand of Hero Honda from her inÂ‐
laws. At that time, accused Vitthabai was saying that though brother of Kusum was on higher posting, still utensils like Cooker is not given. Friends of
Pradeep were saying that he could not get Hero Honda. From this evidence, it is clear that Vitthabai or any other accused has not demanded Motor
cycle as stated by Gopal (PWÂ1) and Gajanan (PWÂ3). If Ramrao (PWÂ4) was mediator then it was for him to inquire from the deceased as to
what type of illÂtreatment was given to her by the accused persons. He has stated in his evidence that accused no.4 Pradeep took deceased Kusum
in the month of September.
Thereafter, she used to visit Daryapur after interval of 4 to 8 days. Ramrao (PWÂ4) has admitted in his crossÂexamination that “I have earlier
stated wrongly that Kusum stated that they have demanded Hero Honda.â€
From the crossÂexamination of Ramrao (PWÂ4), it is clear that all the accused persons were present at his house. None of the accused
demanded Hero Honda or Fridge as stated by Gopal (PWÂ1) and Gajanan (PWÂ3). Ramrao (PWÂ4) was the nearest friend of brother of deceased.
It was natural for him to inquire from the accused persons as to why they were illÂtreating the deceased. It was for the deceased also to narrate all
types of illÂtreatment by the accused persons. But nothing was stated by Ramrao (PWÂ4). The evidence of Gopal (PWÂ1) and Gajanan (PWÂ3)
and Ramrao (PWÂ4) are not reliable in respect of illÂtreatment given by the accused persons.
Gajanan (PWÂ3) has stated in his evidence that she disclosed him that family members used to serve food to her at the end. Her motherÂinÂlaw
and sisterÂinÂlaw used to wear her new sarees. All these are trivial things happening in the matrimonial homes. Moreover, Gopal (PWÂ1) and
Ramrao (PWÂ4) have not stated about the same. Prosecution has not adduced any cogent evidence to prove the cruelty by the accused persons.
There is no dispute that the deceased died due to burning. Post Mortem report (Exh.20) is admitted by the defence. Evidence of
Dr.Rajendrakumar Madangopal Bhattad (PWÂ9) shows that the deceased died due to 98 % burns. Some queries were made to him by the
Investigating Officer. He replied the same saying that death of deceased due to asphyxia could be secondary to burns or strangulation. But, in the
crossÂexamination, he has specifically admitted that he did not find strangulation marks during post mortem. His crossÂexamination further shows
that, due to inhalation of Carbon Monoxide the patient becomes unconscious and when the burn process go on, the injury can be ante mortem. The
person getting burns with kerosene in a small room with very small ventilation like a bathroom, there can be much more accumulation of Carbon
Monoxide. Evidence of Dr.Rajendrakumar Bhattad (PWÂ9) shows that the deceased died due to burn injuries.
Khurshidmiya (PWÂ2) examined by prosecution at Exh.65. His evidence shows that he had been to the house of accused for some purpose. He
heard noise of burning something towards the side of latrine. One lady gave shout to mother saying “aai vahini jalali†(sisterÂinÂlaw burnt).
Someone opened the door of bathroom and poured water. Therefore, it is clear that the deceased committed suicide by pouring kerosene on her
person and setting herself on fire in a bathroom. Spot panchanama (Exh.74) shows that the deceased chained the door of bathroom from inside and
committed suicide. Door of bathroom was broken. There was no chain from outside of the door. This itself shows that the deceased has committed
suicide.
Prosecution has proved that the deceased was wife of accused no.4 Pradeep. There is no dispute that their marriage was performed on
7.12.1989. The deceased died on 4.10.1990. Death of deceased Kusum was due to burn injuries.
Prosecution has failed to prove cruelty or harassment in connection with demand of dowry. Therefore, all the ingredients of Section 304ÂB are
not proved by the prosecution.
Mr.J.Y.Ghurde, learned A.P.P. for the appellant/State has pointed out decision in the case of Smt.Shanti and another .vs. State of Haryana
reported in AIR 1991 SC 1226. It is observed by Hon'ble Supreme Court that the two appellants misbehaved with the father of deceased saying that
he ought to have arranged Scooter and Television as a part of dowry. He was insulted and pushed out of house. Thereafter, the deceased was
murdered and was cremated by two accused/ladies with the help of other three persons. They did not inform any of the relatives and hurriedly
cremated the dead body. Therefore, Hon'ble Supreme Court held that the death was unnatural and in connection with demand of dowry. In the
present case, evidence of Gopal (PWÂ1) shows that when he came to fetch the deceased, accused nos, 1, 3 and 4 were not present. Accused no.2
Neetu/sisterÂinÂlaw were present. Accused no.2 told him that he had not given Motor cycle and Fridge. Therefore, they would not send the
deceased for Diwali festival. As the elder family members were not present, therefore, he went back to village Kolambi. The defence appears to be
probable. Sharad (DWÂ1) has stated in his evidence that Gopal (PWÂ1) was insisting the deceased to come with him. But the deceased was not
ready. Therefore, Gopal scolded and even beaten her. Therefore, she committed suicide.
Learned A.P.P. Mr.Ghurde pointed out the decision in the case of Pathan Hussain Basha vs. State of Andhra Pradesh reported in (2012) 8 SCC
In the cited decision, Hon'ble Supreme Court has observed that “Mere denial cannot be treated as discharge of onus. Onus has to be
discharged by leading proper and cogent evidence. Accused must show that death of deceased did not result from any cruelty or demand of dowry by
accused. On facts, it was held that the accused failed to explain, as to how and under what circumstances deceased died, as well as conduct of
husband immediately prior and subsequent to death of deceased. On the other hand, prosecution by reliable and cogent evidence has established guilt
of the accused. Therefore, no interference with conviction of appellant is called forâ€. In the cited decision, both the Courts below convicted the
accused for the offences punishable under Sections 304ÂB and Section 498ÂA of the Indian Penal Code. In the cited decision, cruelty was
established persistent to dowry demand by the accused persons and cruelty and illÂtreatment meted out to deceased for nonÂfulfillment of demand.
In the present case, prosecution has failed to prove cruelty by accused persons. It appears from the evidence of Gopal (PWÂ1), Gajanan (PWÂ3)
and Ramrao (PWÂ4) that they have stated about illÂtreatment by the accused persons for the demand of Motor cycle and Fridge. It is pertinent to
note that husband of deceased was present when she narrated to her father and brother. Both Gopal (PWÂ1) and Gajanan (PWÂ3) have not stated
that husband of deceased demanded Motor cycle or anything. They have also not stated that her husband demanded anything.They did not inquire
from her husband about their demand. Prosecution has to prove the guilt as defined under Sections 498ÂA and the ingredients of Section 304ÂB of
the Indian Penal Code. Thereafter, burden shifts on the accused.
In the present case, prosecution has failed to prove any of the ingredients of Sections 304ÂB and 498ÂA of the Indian Penal Code. Moreover,
the accused have examined defence witness. He has stated in his evidence that, on the day of incident, Gopal (PWÂ1) had been to fetch the
deceased. Elder family members were not present. He was insisting the deceased to come with him, but the deceased was not ready. Gopal scolded
the deceased and also beat her. Therefore, possibility cannot be ruled out that the deceased committed suicide due to behaviour of her father. Hence,
the cited decisions by prosecution are not helpful.
In the case of Biswajit Halder @ Bablu Halder and Others .vs. State of W.B., 2007 ALL SCR 1596, Their Lordships of the Supreme Court have
held that “mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304ÂB of Indian Penal Code. It has to be
shown in addition that such cruelty or harassment was for or in connection with the demand of dowryâ€. In the cited decision, there was no demand at
the time of settlement of marriage and thereafter, there was demand of Colour Television, English Khat, and VIP Bag etc. There was mere allegation
against the accused persons. In the present case, there was no demand at the time of settlement of marriage in respect of Fridge and Motor cycle
etc. Gopal (PWÂ1) and Gajanan (PWÂ3) have not stated that accused no.1 Vitthabai, accused no.3 Ramesh or husband of deceased namely Pradep
demanded anything to them. They have only stated that the deceased told them that the accused persons were demanding Fridge and Motor Cycle
and on that count, there was harassment. No specific act of cruelty was stated by the deceased to any of the witnesses.
Evidence of Ramrao (PWÂ4) shows that the deceased was residing with her husband/accused no.4 at Warud and she was visiting Daryapur after
4Â8 days. Therefore, it is clear that she was not continuously residing with other accused persons. There was no specific allegation against her
husband. Hence, the prosecution has miserably failed to prove harassment and cruelty by the accused persons on account of demand of Motor cycle,
Fridge etc. Prosecution has failed to discharge its burden. Mere fact that the deceased died unnatural death in the matrimonial home within seven
years of marriage is not sufficient to bring home the guilt of accused. Hon'ble Supreme Court in the case of Baijnath .vs. State of M.P., (2017 ALL
SCR (Cri) 104) has observed as under:
“ The presumption (under S.113B of the Evidence Act) as to dowry death would get activated only upon the proof of the fact that the deceased
lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable
continuity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission
of the offence of dowry death by the person charged therewith.
A conjoint reading of the three provisions (viz. Sections 498A and 304B of IPC and S.113B of Evidence Act), predicate the burden of the prosecution
to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section
113B of the Evidence Act against the accused. Proof of cruelty or harassment by the husband or his relative or the person charged is thus the sine
qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent
coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking
refuge only of the presumption to cover up the shortfall in proof. â€
In respect of burden of proof, Mr.J.Y.Ghurde, learned A.P.P. has submitted that the deceased died in the matrimonial home. Therefore, it was
for the accused persons to explain as to how she died. Learned A.P.P. has submitted that the deceased was in the custody of accused persons. The
burden to prove the facts within the knowledge of accused persons is not discharged. The accused persons have not explained as to how the
deceased died. Therefore, presumption arises against the accused persons. In support of his submission, he pointed out the decision in the case of
State of Rajasthan vs. Thakur Singh reported in 2014 LawSuit (SC) 501.
First of all, prosecution has to prove it's case and thereafter, burden shifts on the accused. This cardinal principle is laid down by Hon'ble Apex
Court in the case of Baijnath and Others .vs. State of Madhya Pradesh (supra). In the present case, prosecution has failed to prove cruelty to the
deceased by any of the accused persons. No particular instance of cruelty is stated by any of the witnesses. Ramrao (PWÂ4) was resident of
Daryapur. He was mediator of the marriage between accused no.4 Pradeep and the deceased. Therefore, it was natural for Gopal (PWÂ1) and
Gajanan (PWÂ3) and the deceased to have arranged meeting about demand of accused persons, but no such attempt was made. On the other hand,
Ramrao (PWÂ4) has not stated that the deceased told him about demand of Motor cycle etc. by her husband. He has stated that motherÂinÂlaw of
the deceased told him that article like Cooker was not given in the marriage. Cooker is not such an article which can be taken into consideration as a
dowry.
Prosecution has failed to prove any of the ingredients of the offence charged against the accused. Probable defence is established by the accused
persons by examining defence witness. He has specifically stated that, on the day of incident,Gopal (PWÂ1) had been to fetch the deceased. She
was not ready to go with him. He scolded her and beat her. Therefore, possibility of committing suicide by deceased Kusum in a fit of anger cannot
be ruled out.
Learned Counsel for the accused pointed out the Judgment of Hon'ble Supreme Court in the case of Dudh Nath Pandey .vs. State of U.P.
reported in 2014 ALL SCR (O.C.C.) 97. Their Lordships have observed that “defence witnesses are entitled to equal treatment with those of the
prosecution. The Court ought to have overcome their traditional instinctive disbelief in these defence witnesses. Quite often, they tell lies but so do the
prosecution witnesses.â€
Evidence of Medical Officer and Post Mortem report show that the deceased committed suicide by burning herself. Spot panchanama (Exh.74)
shows that she has committed suicide in a bathroom by putting chain from inside. There was no chain from the outside to the door. The door was
broken and fire was extinguished. This itself shows that the deceased herself committed suicide. Prosecution failed to prove cruelty on account of
demand of dowry or cruelty which was of such a nature to drive her to commit suicide. Prosecution has failed to prove any of the ingredients of
Section 304B and 498ÂA of the Indian Penal Code. Mere factum of unnatural death in matrimonial home within seven years of marriage is not
sufficient to bring home the guilt under Sections 304ÂB and 498ÂA of the Indian Penal Code.
This is an appeal against acquittal. Hon'ble Supreme Court has laid down guiding principles while deciding the appeal against acquittal. In the case
of Govindaraju @ Govinda .vs. State by Sriramapuram P.S. and another reported in 2012 ALL MR (Cri) 1385 (S.C.), it is observed by Hon'ble
Supreme Court as under :
“8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of
innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such
presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a
normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its
jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for. â€
Hon'ble Supreme Court has further observed as under :
“ The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence
adduced in a case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted.
There are no jurisdictional limitations on the power of the Appellate Court but it is to be exercised with some circumspection. The paramount
consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less
than that from the conviction of an innocent. If there is miscarriage of justice from the acquittal, the higher Court would examine the matter as a Court
of fact and appeal while correcting the errors of law and in appreciation of evidence as well. Then the Appellate Court may even proceed to record
the judgment of guilt to meet the ends of justice, if it is really called for. â€
From the careful reading of the impugned Judgment, it is clear that the view taken by the learned trial Court is a correct view and therefore, no
interference is called for. Hence, we are not inclined to allow the appeal and pass the following order.
ORDER
The appeal is dismissed with no order as to costs.
The record and proceedings be sent back to the trial Court.