Crl.A./66/2008
2022 Latest Caselaw 4851 Gua

                                                                            Page No.# 1/28

GAHC010140972008




                          THE GAUHATI HIGH COURT AT GUWAHATI
            (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                                PRINCIPAL SEAT AT GUWAHATI


                                     Criminal Appeal No. 66 of 2008


1. Ramesh Poddar,
S/o Ganesh Poddar,,
Resident of Krishna Nagar Hill Side,
P.S.- Dispur, Guwahati,
District-Kamrup, Assam.


  2. Ganesh Poddar,
    S/o Late Raju Poddar,
Resident of Krishna Nagar Hill Side,
P.S.- Dispur, Guwahati,
District-Kamrup, Assam.


                                                                       .............

Accused/Appellants

-Versus-

The State of Assam.

...............

Respondent Page No.# 2/28

Advocates for the appellants : Ms D Saikia, Amicus Curiae.

Advocate for the respondent : Mr P S Lahkar, Addl. P.P.

                                          BEFORE
                       HON'BLE MRS. JUSTICE MALASRI NANDI


Date of Judgment            :     09.12.2022




                             JUDGEMENT AND ORDER (CAV)

Heard Ms D Saikia learned counsel for the appellants and Mr P S Lahkar, learned Additional

Public Prosecutor for the State of Assam/respondent.

2. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, has

been filed against the Judgment and Order dated 26.03.2008, passed by the learned

Additional Sessions Judge (FTC) No. 4, Kamrup, Guwahati, in connection with Sessions Case

No. 95 (K)/2007, whereby the appellants were convicted under Section 304(B) IPC and

sentenced to Rigorous Imprisonment for 7 years each and to pay a fine of Rs. 1,000/- each,

in default another Rigorous Imprisonment for 6 (six) months each.

3. The facts of the case what emerges from the FIR is that the informant, Pankaj Poddar

lodged the same, alleging inter alia that on 30.06.2004, his sister Labita @ Rabita Devi's

social marriage was solemnized with Ramesh Poddar of Japorigog, and his sister was Page No.# 3/28

physically tortured by her husband and his family members on demand of dowry. Once, he

had paid Rs. 5,000/- to fulfill the demand of the husband of his sister. On 21.01.2005,

Ramesh Poddar assaulted his sister and set her on fire by pouring kerosene oil. His sister was

admitted to Gauhati Medical College and Hospital (hereinafter, in short, "GMCH") for

treatment. Later on his sister passed away in the said hospital. It has also been alleged that

his father Ganesh Poddar and his wife were also involved in the incident.

4. On receipt of the complaint, a case was registered vide Dispur PS Case No. 94/2005,

under Sections 304 (B)/34 IPC and investigation was started. On that information, the

Investigating Officer proceeded to the place of occurrence and statements of the witnesses

were recorded, inspected the dead body of the deceased at GMCH, conducted inquest over

the dead body and prepared inquest report and subsequently, the dead body was forwarded

for Post-Mortem Examination.

5. The Medical Officer, Dr. Kanak Chandra Das who conducted Post-Mortem Examination on

the dead body of the deceased found the following injuries:-

Burned female dead body found with one blue colour blanket. Burn injury present over the

whole body surface areas except scalp, perineum, both feet, front of abdomen.

Doctor opined that death was due to shock as a result of antemorem injuries covering about

90 % of the total body surface area. Approximate time since death-18 to 24 hours.

6. The investigation of the case was entrusted to the IO, Ananda Das, SI of Police, who

visited the place of occurrence, prepared site plan, and recorded statement of witnesses and

after completion of investigation submitted charge sheet vide Exhibit-9 ,against both the Page No.# 4/28

appellants along with Jasoda Poddar, Chinta Poddar and Shobha Kumari, under Section 304

(B) IPC and since the offence under Section 304 (B) IPC was exluclusively triable by the Court

of Sessions, it was committed for trial.

7. During trial, the accused persons put their appearance before the trial Court and charge

was framed under Section 304(B) IPC, which was read over and explained to the accused

persons, to which they pleaded not guilty and claimed to be tried.

8. The prosecution in order to prove its case, examined 11 witnesses. The prosecution also

relied upon nine exhibits and material objects. After conclusion of the prosecution evidence,

the statement of the appellants and other co-accused were recorded under Section 313 CrPC,

wherein, they admitted that the deceased was married with the appellant, Ramesh Poddar,

and after 6 (six) months of their marriage she had died in their house due to burn injuries,

but denied the prosecution story as well as the evidence of the informant and other

witnesses. They further stated that the deceased was burnt while she was cooking food at

the time of occurrence. They further stated that they were not present in their house at the

relevant time of incident. Having seen the flame of fire and hearing the noise of the nearby

people, they reached there and put off the fire with the help of the people, but they were

falsely implicated in this case.

9. The appellants did not adduce any evidence in their defence.

10. The trial Court, after conclusion of the evidence available on record, in view of the

arguments made on behalf of the appellants as well as the prosecution, vide impugned

Judgment and Order dated 26.03.2008, passed by the learned Additional Sessions Judge

(FTC) No. 4, Kamrup, Guwahati, convicted and sentenced the present appellants as aforesaid.

Page No.# 5/28

The other accused persons, namely, Jasoda Poddar, Chinta Poddar and Shobha Kumari, were

acquitted by the trial Court.

11. Learned counsel for the appellants has submitted that appellants are innocent and they

have been falsely implicated in the present case. Learned counsel further submitted that the

deceased was mentally weak. She was cooking food in the kitchen. Learned counsel further

added that at the time of occurrence, none of the appellants, including co-accused were

present in their house and on the alarm raised by co-villagers and co-accused, they reached

there and put off the fire, but the deceased had died due to burn injury. It is also stated that

the deceased had committed suicide.

12. It is also the submission of the learned counsel for the appellants that no complaint

regarding demand of dowry or harassment was made by the informant earlier to this

occurrence. Learned counsel further contended that the trial Court, without considering the

materials available in the record, in proper manner has passed the impugned judgment and

order in a very cursory manner, which is liable to be set aside.

13. Learned counsel for the appellants also contended that the PW-2 and PW-3, were

admittedly not present at the time when the marriage between the deceased and the

accused, Ramesh Poddar was solemnized and they also did not visit the house of accused

persons after the marriage of the deceased, Rabita, till her death. Hence, PW-2 and PW-3 did

not have any knowledge or information as regards any demand of dowry.

14. Learned counsel for the appellants further argued that the appellants did not dispute

the fact that the deceased was the wife of Ramesh Poddar, but the evidence on record would Page No.# 6/28

show that it was a simple case of suicide committed by the deceased. The prosecution has

failed to establish beyond reasonable doubt that the accused appellants had committed the

acts of harassment or cruelty, as contemplated under Section 304 (B) IPC, on demand of

dowry. Apart from that, there are lots of contradictions in the evidence of witnesses,

regarding demand of dowry and other articles by the accused appellants. Hence, the accused

appellants deserve to be acquitted on benefit of doubt.

15. It is also submitted that there is no direct evidence of cruelty or harassment by the

appellants towards the deceased. The Medical Officer who carried out the Post-Mortem

examination on the body of the deceased opined that besides the burn injuries, there was no

other injury on the body of the deceased and other organs of the deceased were found to be

normal. It is, therefore, difficult to hold that the prosecution has established beyond

reasonable doubt that the appellants had committed any act of cruelty towards the deceased

or subjected her to any harassment for or in connection with demand of dowry and was guilty

of the offence under Section 304(B) IPC.

16. In support of her submission, learned Amicus Curiae has placed reliance on the

following case-laws:-

1) 2005 (2) GLT 580; (Gautam Saha vs. State of Assam)

2) 1998 (4) GLT 258; (Manik Dutta -vs- State of Tripura)

17. Per contra, learned Additional Public Prosecutor vehemently opposed the submission of

the learned counsel for the appellants and submitted that the death of the deceased had

been caused by the burn injuries within 7 years of marriage inside the house of the appellant Page No.# 7/28

and the deceased was tortured and harassed soon before her death on demand of dowry. It

is also submitted that the marriage of the deceased was solemnized on 30.06.2004 and the

deceased died on 21.01.2005, due to burn injuries, which had been admitted by the

appellants in their statements under Section 313 CrPC. It is also argued that the appellants

had failed to lead any cogent evidence to prove that the deceased had committed suicide,

and had also failed to show any reason as to why she had committed suicide.

18. Learned Additional Public Prosecutor also argued that for the offence under Section 304

(B) IPC, if the essential elements of dowry death is proved, the appellants may be convicted

for the offence under Section 304 (B) IPC. Learned Additional Public Prosecutor also

contended that the medical evidence has supported the ocular evidence, and the prosecution

evidence cannot be disbelieved only for want of some minor contradictions. It is also

submitted that the impugned Judgment and Order is well discussed and well reasoned and

requires no interference. The appeal has no force and is liable to be dismissed.

19. I have considered the rival submissions made by learned counsel for the parties and

perused the record of the trial Court and the documents available in the record.

20. In the instant case, both the appellants have been convicted and sentenced for the

offence under Section 304 (B) IPC. Before considering the evidence available on record, in

the light of arguments advanced by the learned counsel for the parties, it is necessary to

refer to the relevant provisions of law relating to the offence under Section 304 (B) IPC and

Section 113-B of the Indian Evidence Act, 1872 which is quoted as under:-

"304B. Dowry death.--

Page No.# 8/28

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise

than under normal circumstances within seven years of her marriage and it is shown that

soon before her death she was subjected to cruelty or harassment by her husband or any

relative of her husband for, or in connection with, any demand for dowry, such death shall be

called "dowry death", and such husband or relative shall be deemed to have caused her

death.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which

shall not be less than seven years but which may extend to imprisonment for life."

"113B. 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 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.

Explanation. For the purposes of this section, dowry death shall have the same meaning as in

section 304B of the Indian Penal Code (45 of 1860)."

21. The above provision related with dowry death clearly shows that if the death of any

woman is caused within seven years of her marriage by burn or bodily injury "or otherwise

under normal circumstances" and it is shown that soon before her death she was subjected

to cruelty or harassment by her husband in connection with demand for dowry and if the

prosecution succeeds to prove the above ingredient, such death shall be called as dowry

death. In addition to above, Section 113-B of the Indian Evidence Act, 1872 provides that in Page No.# 9/28

such cases, if it is shown that such woman was subjected, soon before her death by the

accused, to cruelty or harassment for or in connection with any demand for dowry, the Court

shall presume that such accused had caused the dowry death.

22. PW-1 is Pankaj Poddar, who is the brother of the deceased as well as informant of the

case. From his deposition, it reveals that his sister deceased, Lavita @ Ravita was given in

marriage with accused appellant, Ramesh Poddar, on 30.06.2004. The wedding was held as

per the social rites and traditions. After the marriage, his sister was taken to the house of the

accused persons, but it is alleged that after the marriage, the accused persons used to harass

his sister for demand of dowry articles. The accused persons used to assault his sister and

asked her to bring money from her elder brother. She told him about it when he visited the

house of the accused to bring her. He also paid Rs. 5,000/- to Ganesh Poddar, at the time of

marriage of his sister. After giving him the said amount, he again demanded money, but he

could not give him the said amount.

23. PW-1 also stated that after one month of the marriage of his sister, he went to the

house of the accused and her husband and her father in law told him that he would have to

provide all of them clothes and gold. He wanted to bring her sister back but the accused

persons Ganesh and Ramesh told him that they would not allow him to bring Lavita back to

her maternal home until they did not fulfill their demand. Since then, he had never been to

the house of the accused.

24. It is also stated by PW-1 that on 21.01.2005, accused Ramesh informed him that his

sister was sick and he should visit their house immediately. On enquiry he came to know that

his sister had sustained burn injuries and she was admitted to GMCH. Immediately, he along Page No.# 10/28

with his elder brother, Sankat Poddar and his wife rushed to the GMCH and found Lavita on a

bed, wrapped in a blanket. She was unable to speak. His sister's entire body got burnt. When

they reached there the accused persons were there, but when he came out to make a phone

call to his another elder brother, Dilip Poddar, the accused persons fled away from the

hospital. Thereafter, he along within his brother Dilip Poddar went to Dispur Police Station

and then lodged the FIR, vide Exhibit-1. When he came back after making call to his elder

brother, Dilip Poddar, his sister had passed away.

25. It is further stated by PW-1 that the neighbours of the accused persons told him that

they had set his sister Lavita on fire by pouring kerosene oil. The neighbours of the accused

persons also told him that they had set fire on their sister for not giving dowry.

26. In his cross examination, PW-1 replied that his sister's wedding was held at Basistha

Mandir. He handed over Rs. 5,000/- to the accused Ganesh Poddar at his sister's wedding.

The accused persons never allowed his sister to visit their house. His sister once came to

their house secretly during Durga Puja. At that time, he handed over Rs. 5000/- to his sister.

Apart from that, she never visited their house.

27. PW-1 also replied in his cross-examination that in the evening, on the date occurrence,

neigbours of the accused one Rabha and Kalita told him that the accused persons had set his

sister on fire.

28. PW-2 is Dilip Poddar. He deposed in his evidence that the incident occurred on 21 st

January 2005. Prior to the date of accident, i.e., on 20.01.2005, at about 3 pm, he went to

Narayanpur for some work. He met Ganesh on the way. Ganesh asked him to inform Pankaj Page No.# 11/28

to give them dowry, whatever they had demanded, otherwise he would face grave

consequences. He (PW-2) replied that since Pankaj had become his relative, they should

settle the matter themselves. Then Ganesh warned him by saying that- "I tell you, do not

blame me, if anything would happen in future." At about 05:00 pm on 21.01.2005, Pankai

informed him about the incident over phone. Having received the phone, he went to GMCH

and saw that Labita was lying on the bed. There he heard that the accused persons set Lavita

on fire by pouring kerosene oil and that she had been set on fire over dowry issues.

29. In his cross-examination, PW-2 replied that Pankaj is the brother in-law of his wife's

sister. He was not on visiting terms with the accused. He was not present at the wedding of

Lavita and Ramesh. On 20.01.2005, no body was present at the time when Ganesh Poddar

told him about the matter. Pankaj Poddar told him at GMCH that the accused had set Lavita

on fire for dowry.

30. PW-3 is Mahendra Poddar. From his deposition, it discloses that the incident took place

on 21st January, 2005. The marriage of Lavita took place in the year, 2004. He was not

present at the wedding of Lavita. When Lavita died, Pankaj informed him about her death.

Pankaj told him that the accused persons had set Lavita on fire by pouring kerosene oil over

dowry issues. Lavita died at GMCH. He went to see her dead body. Her dead body was

wrapped in a blanket. He noticed that her whole body had sustained burns.

31. In his cross-examination, PW-3 replied that before Lavita died, Pankaj told him that

Lavita's father-in-law had asked for clothes and other items as dowry. He met Pankaj Poddar,

Arvind Poddar and Sankat Poddar at GMCH.

Page No.# 12/28

32. PW-4 is the neighbour of the accused persons, namely, Smt. Sarba Das. She deposed in

her evidence that the occurrence took place in the house of accused Ramesh. On that day at

about 9:00/10:00 am, she was cooking meal in her house, then she heard some hue and cry

at the residence of Ramesh. Coming out of her house, she noticed smoke in the house of

Ramesh and she went there and found wife of Ramesh was sitting in the courtyard and her

clothes were burnt. At that time, she was able to speak. On being asked, wife of Ramesh

replied that she had herself set on fire. Thereafter, she wanted to have some water. Then

Ramesh's sister brought water for her. She was unable to speak after drinking water.

Thereafter, Ramesh's mother and sister took her to medical. She came to know that wife of

Ramesh died in hospital. She did not go to the medical.

33. In the cross-examination, PW-4 replied that the house of the accused is towards the

north of her house. There is a slum area. The house of the accused is not clearly visible from

their house.

34. PW-5 is another neighbor of the accused, namely Nripen Rabha, He admitted that the

accused Ramesh is a married person and he had seen the wife of Ramesh after the wedding,

but he was not on visiting terms with the accused persons.

35. As the witness did not support the prosecution case, the witness was declared hostile at

the instance of prosecution.

36. When PW-5 was cross-examined by the prosecution, he admitted the whole thing,

whatever he had stated before the IO, when his statement was recorded under Section 161

CrPC. He admitted that he had stated before the Police that the house of Ganesh Poddar is Page No.# 13/28

adjacent to his house and the family members of Ganesh Poddar had often assaulted their

daughter-in-law at night and on multiple occasions he had tried to dissuade them from doing

so but they did not pay heed to it and on the night of 20.01.2005, the family members of

Ganesh Poddar had badly assaulted her and he had heard at that time the daughter-in-law

was crying loudly.

37. PW-6 is Hiro Das, who is also the neighbor of the accused. According to him, the

incident took place in the house of the accused. He went there after hearing hue and cry at

the residence of the accused. Reaching there, he saw Ganesh's elder daughter was pouring

water on the woman in flames to extinguish the fire. The woman in flames was the wife of

accused Ramesh. Later on, he came to know that the woman had died in the medical, but he

did not know how the wife of Ramesh received burn injuries.

38. PW-7 is the seizure witness, who proved Exhibit -3, seizure list. Police seized one

utensil, a broken match box and a burnt sandal from the place of occurrence.

39. PW-8 is one of the IO, who deposed in his evidence that on receipt of information

regarding death of Lavita, he made a GD Entry in GMC Outpost, wherein he was posted at

the relevant point of time. He informed the Magistrate to conduct the inquest.

40. PW-9 is the Executive Magistrate, who conducted inquest on the dead body of the

Rabita @ Labita. He deposed in his evidence that on 22.01.2005, he was working as

Executive Magistrate, at Kamrup (Metro) and on that day he conducted the inquest as per

order of the DC, Kamrup (Metro) in connection with Dispur PS Case No. 94/2005, under

Section 304(B)/34 IPC and found as follows:-

Page No.# 14/28

The body was found on a stretcher on the corridor of GMCH.

The eyes were closed, but the lips are apart showing the upper breath.

Both hands were bent at the elbow. Right wrist was found bandaged. Body was found

burnt from the forehead to the ankle on both sides. The hands were also found burnt.

41. The Investigating Officer was examined in the case as PW-11. From his deposition, it

reveals that on 21.01.2005, he was working at Dispur Police Station. On receipt of the ejahar

from one Pankaj Poddar, the Officer-In-charge of the Police Station registered a case vide

Dispur P S Case No. 94/2005, under Sections 304B/34 IPC. He was endorsed to investigate

the case. While taking the responsibility of investigation, he found the informant in the Police

Station and he interrogated him. He went to GMCH, knowing that Lavita's dead body was at

GMCH. After conducting the inquest by the Magistrate, the dead body was sent for post-

mortem examination. He visited the place of occurrence, which is the house of accused on

top of the hill in Krishanagar. He drew the sketch map. He seized an oil measuring utensil, a

broken matchbox, a burnt rubber sandal from the place of occurrence. He examined Dilip

Poddar, Nripen Rabha, Hiru Das, Mahendra Poddar, Sarba Das in the place of occurrence.

42. PW-11 also stated in his deposition that witness Nripen Rabha told him that Ganesh

Poddar's wife and his two daughters had said that they would set her on fire. He arrested

accused Ganesh, Ramesh, Jasoda Devi, Chinta Kumari Devi and Shobha Kumar Devi and

forwarded them to Court. The Post-Mortem report of the deceased was collected and after

completion of investigation, he submitted charge sheet under Section 304(B)/34 IPC against

the accused Ganesh Poddar, Ramesh Poddar, Chinta Devi, Jasoda Devi and Shobha Devi, vide Page No.# 15/28

Exhibit- 9.

43. In his cross-examination, PW-11 replied that none of the witnesses told him that they

had seen the accused Ramesh had poured kerosene on Lavita after assaulting her. None of

the witnesses told him that they had seen the accused demanding dowry from the deceased.

44. On a careful perusal of the evidence of witnesses, it reveals that PW-1, who is the

brother of the deceased, alleged that since after the marriage of her sister with Ramesh

Poddar, his sister went to the house of the accused persons and accused persons used to

demand dowry articles and money. Once he paid Rs. 5,000/- to Ganesh Poddar. According to

PW-1 when he visited sister's house after a month of her marriage, her husband and father-

in-law asked him to provide clothes and gold for them. They also did not allow him to take his

sister to his house, until he could not fulfill their demand.

45. Admittedly, Lavita died in the house of the accused persons, after 6 months of her

marriage. Though the fact of demand of money and torture towards the deceased was

denied by the accused persons, but there is no any effective cross-examination on the point

of torture and demand of dowry articles.

46. It is true that there are some contradictions in the statement of PW-1, regarding

payment of money at the time of wedding and after the wedding of his sister, but it appears

that the incident occurred in the year 2005 and the witness was examined by the trial Court,

in the year 2007, i.e., after two years of the incident. It is quite natural on his part to recollect

the payment of money either on the date of wedding or after the wedding of his sister.

47. It is the settled proposition of law that minor contradictions can be overlooked. Minor Page No.# 16/28

contradictions here and there are expected when the witness gives evidence after a lapse of

time. (Allauddin -vs- State of Bihar; AIR 1989 SC 1456)

48. According to PW-2, he met accused Ganesh Poddar, prior to the date of incident and

Ganesh told him to inform Pankaj to give them whatever dowry items they had demanded,

otherwise they would face bad consequences and Ganesh warned him by saying " I tell you,

do not blame me if anything would happen in future". PW-3 also stated that before Lavita had

died, Pankaj told him that Lavita's father-in-law had asked him to provide clothes and other

articles as dowry and the fact was not denied by the accused.

49. Regarding hostile witness, it is a settled position of law that evidence of a witness

declared hostile, is not wholly effaced from the record and that part of the evidence which is

otherwise acceptable can be acted upon.

50. The Supreme Court in the case of Gura Singh vs. State of Rajasthan, reported in

(2001) 2 SCC 205 has held as under:-

"There appears to be misconception regarding the effect on the testimony of a witness

declared hostile. It is a misconceived notion that merely because a witness is declared hostile,

his entire evidence should be excluded or rendered unworthy of consideration. This Court in

Bhagwan Singh vs. State of Haryana, held that merely because the Court gave

permission to the Public Prosecutor to cross-examine his own witness describing him as

hostile witness does not completely efface his evidence. The evidence remains admissible in Page No.# 17/28

the trial and there is no legal bar to base the conviction upon the testimony of such witness.

In Rabindra Kumar Dey v. State of Orissa, it was observed that by giving permission to

cross-examine nothing adverse to the credit of the witness is decided and the witness does

not become unreliable only by his declaration as hostile. Merely on this ground, his whole

testimony cannot be excluded from consideration. In a criminal trial, where a prosecution

witness is cross-examined and contradicted with the leave of the Court by the party calling

him for evidence cannot, as a matter of general rule, be treated as washed off the record

altogether. It is for the Court of fact to consider in each case whether as a result of such

cross-examination and contradiction, the witness stands discredited or can still be believed in

regard to any part of his testimony. In appropriate cases, the Court can rely upon the part of

testimony of such witness, if that part of the deposition is found to be creditworthy."

51. It is true that PW-5, who is the neighbor of the accused appellant had turned hostile,

but had supported the prosecution story to some extent by stating that at about 9:00 pm, the

quarrel started in the house of the accused. He did not know why the quarrel took place, but

subsequently, in his cross-examination by prosecution, PW-5 admitted that the accused

persons, Ganesh Poddar and his family members used to torture their daughter-in-

law/deceased at night prior to the date of incident. He heard at that time, the deceased was

crying loudly.

52. So far as submission of learned counsel for the appellants that according to prosecution

case, the deceased was being continuously harassed and tortured for a long time after her

marriage, but no complaint or FIR was filed by the parents or brother of deceased, the

prosecution version regarding harassment and torture due to demand of dowry is doubtful, is Page No.# 18/28

concerned, it is often seen that in rural areas either due to illiteracy or due to social stigma or

criticism, the bride and her parents do not agitate some problem and issues occurred after

her marriage between them with family of bride groom, as they believe that due to lapse of

time the problem whether it is related to demand of dowry or otherwise, may be subsided or

pacified in future. Parents of bride do not want to interfere in such disputes. The poor and

helpless father of the bride used to prefer to remain as a silent spectator in such disputes and

avoid to complain to police authorities because he believes that such step may deteriorate the

relationship of his daughter with her husband and in-laws. Failure to take any legal step in

such disputes against the in-laws of the deceased does not mean that neither dowry was

demanded nor harassment or cruelty was committed to the deceased soon before her death.

53. In the case of Preet Pal Singh vs. State of U.P.; AIR 2020 SC 3995, where

Allahabad High Court had suspended the sentence of the appellant, convicted for the offence

of dowry death, on the ground that no complaint for demand of dowry was made earlier by

the father of the deceased, Hon'ble Supreme Court, setting aside the impugned order passed

by the said Court, has held as under:

"42. From the evidence of the Prosecution witnesses, it transpires that the Appellant had

spent money beyond his financial capacity, at the wedding of the victim and had even gifted

an I-10 car.The hapless parents were hoping against hope that there would be an amicable

settlement. Even as late as on 17.6.2010 the brother of the victim paid Rs. 2,50,000/- to the

Respondent No.2. The failure to lodge an FIR complaining of dowry and harassment before

the death of the victim, is in our considered view, inconsequential. The parents and other

family members of the victim obviously would not want to precipitate a complete break down Page No.# 19/28

of the marriage by lodging an FIR against the Respondent No. 2 and his parents, while the

victim was alive."

54. Thus, in view of law laid down by the Hon'ble Apex Court in Preet Pal Singh (Supra)

and the facts and circumstances of this case, the prosecution case cannot be disbelieved on

the ground that the prosecution witnesses had failed to file any complaint prior to this

occurrence.

55. Coming to the facts of the instant case, admittedly the deceased had died due to the

burn injuries, inside the house of the appellants within six months of her marriage and this

fact had also been admitted by the appellants in their statements recorded under 313 CrPC.

For the offence under Section 304 (B) IPC read with Section 113-B of Indian Evidence Act,

the prosecution has to prove beyond reasonable doubt, the demand and that due to failure of

fulfillment of demand, the deceased was harassed and tortured by relative or husband, soon

before her death. These provisions further show that if the deceased had died in an unnatural

circumstance, due to harassment or torture as above, there must be some proximity between

the demand of dowry, harassment and death of deceased. Thus, it has also to be seen

whether any cruelty or harassment was caused to the deceased , soon before her death due

to demand of dowry.

56. The term "soon before death" used in Section 304-B I.P.C. and 113-B of Evidence Act

has neither been explained nor defined either in I.P.C. or in Indian Evidence Act, 1872 and

the term "it is shown" that soon before her death the deceased was subjected to cruelty or

harassment by her husband or any relative of her husband for, or in connection with, any

demand of dowry, as condition precedent for dowry death, shows that the factum of cruelty Page No.# 20/28

or harassment by the appellants with the deceased soon before her death, is not required to

be proved by prosecution beyond reasonable doubt. This fact may be proved by the

prosecution by showing the facts and circumstances happened with deceased, soon before

death of deceased. In addition to above, the term "soon before death" does not mean just

before death or immediately before death of deceased, she was subjected to torture, cruelty

or harassment by her in-laws due to demand of dowry.

57. Hon'ble Supreme Court while discussing the object and purpose of Section 304-B I.P.C.

and the scope of relevancy and meaning of phrase "soon before death of deceased"

contained therein, in Kans Raj vs. State of Punjab; (2000) 5 SCC 207 has held as under

:

"15. It is further contended on behalf of the respondents that the statements of the deceased

referredto the instances could not be termed to be cruelty or harassment by the husband

soon before her death. "Soon before" is a relative term which is required to be considered

under specific circumstances of each case and no straitjacket formula can be laid down by

fixing any time-limit. This expression is pregnant with the idea of proximity test. The term

"soon before" is not synonymous with the term "immediately before" and is opposite of the

expression "soon after" as used and understood in Section 114, Illustration (a) of the

Evidence Act. These words would imply that the interval should not be too long between the

time of making the statement and the death. It contemplates the reasonable time which, as

earlier noticed, has to be understood and determined under the peculiar circumstances of

each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or

harassment to the deceased are not restricted to a particular instance but normally refer to a Page No.# 21/28

course of conduct. Such conduct may be spread over a period of time. If the cruelty or

harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon

before death" if any other intervening circumstance showing the non-existence of such

treatment is not brought on record, before such alleged treatment and the date of death. It

does not, however, mean that such time can be stretched to any period. Proximate and live

link between the effect of cruelty based on dowry demand and the consequential death is

required to be proved by the prosecution. The demand of dowry, cruelty or harassment based

upon such demand and the date of death should not be too remote in time which, under the

circumstances, be treated as having become stale enough.

58. In Rajindar Singh vs. State of Punjab ; AIR 2015 SC 1359, three Judges Bench of

Hon'ble Supreme Court while placing reliance on the law laid down in Kans Raj (Supra),

affirming the law laid down in Surindra Singh vs. State of Haryana; 2014 (4) SCC 129

and Sher Singh vs. State of Haryana; (2015) 3 SCC 724 and partly overruling the law

laid down in Dinesh vs. State of Haryana; (2014) 12 SCC 532 has held as under :

".......We, therefore, declare that any money or property or valuable security demanded by

any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any

time after the marriage which is reasonably connected to the death of a married woman,

would necessarily be in connection with or in relation to the marriage unless, the facts of a

given case clearly and unequivocally point otherwise. Coming now to the other important

ingredient of Section 304B- what exactly is meant by "soon before her death"?

59. In the case of Surinder Singh v. State of Haryana; (2014) 4 SCC 129, had this to

say:

Page No.# 22/28

"17. Thus, the words "soon before" appear in Section 113-B of the Evidence Act, 1872 and

also in Section 304-B IPC. For the presumptions contemplated under these sections to spring

into action, it is necessary to show that the cruelty or harassment was caused soon before

the death. The interpretation of the words "soon before" is, therefore, important. The

question is how "soon before"? This would obviously depend on the facts and circumstances

of each case. The cruelty or harassment differs from case to case. It relates to the mindset of

people which varies from person to

person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades.

It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be

giving threats of injury to her or her near and dear ones. It can be depriving her of economic

resources or essential amenities of life. It can be putting restraints on her movements. It can

be not allowing her to talk tothe outside world. The list is illustrative and not exhaustive.

Physical cruelty could be actual beatingor causing pain and harm to the person of a woman.

Every such instance of cruelty and related harassment has a different impact on the mind of a

woman. Some instances may be so grave as tohave a lasting impact on a woman. Some

instances which degrade her dignity may remain etched in her memory for a long time.

Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed

formulae. The time-lag may differ from case to case. This must be kept in mind while

examining each case of dowry death."

60. In the instant case, it is an admitted fact that the deceased died inside the house of the

accused appellant having burnt injuries on her person within six months of her marriage.

Allegation against the accused appellants is that they used to torture her on demand of Page No.# 23/28

dowry articles. PW-1 categorically stated that when he visited the house of his sister after one

month of marriage, her husband and father-in-law asked him to provide clothes and gold and

the other witnesses also supported the fact by stating that they came to know from PW-1

regarding demanding clothes and gold by the accused appellants. The PW-5 who is the

neighbor of the accused appellants also stated that he had seen the accused appellants used

to torture the deceased. Prior to the date of incident, i.e., on 20.01.2005, he had noticed that

the deceased was being assaulted by the accused appellants in their house and he had also

heard the loud cry of the deceased. Thus, it is clear that there was cruelty and harassment

with the deceased for demand of dowry soon before her death as required under Section 304

(B) IPC.

61. It is also pertinent to note that in most of the cases the dowry death of the deceased is

caused inside the house of the accused persons and all the relevant facts as well as

incriminating evidence is in the knowledge of the accused persons but they do not come

forward soon before her death. Therefore, the prosecution cannot be blamed, which is not in

the possession and knowledge of prosecution witnesses.

62. In the case of Trimukh Maroti Kirkan vs. State of Maharashtra ; 2006 (10) SCC

681, where accused was charged for committing murder of his wife for want of dowry and it

was established by the prosecution that shortly before the offence, he was seen with his wife

inside his house where he and his wife were normally used to reside. Hon'ble Supreme Court

has held as under :

"Where an accused is alleged to have committed the murder of his wife and the prosecution

succeeds in leading evidence to show that shortly before the commission of crime they were Page No.# 24/28

seen together or the offence takes placed in the dwelling home where the husband also

normally resided, it has been consistently held that if the accused does not offer any

explanation how the wife received injuries or offers an explanation which is found to be false,

it is a strong circumstance which indicates that he is responsible for commission of the crime.

In Nika Ram v. State of Himachal Pradesh ; AIR 1972 SC 2077 it was observed that

the fact that the accused alone was with his wife in the house when she was murdered there

with 'khokhri' and the fact that the relations of the accused with her were strained would, in

the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of

Maharashtra; (1992) 3 SCC 106, the appellant was prosecuted for the murder of his wife

which took place inside his house. It was observed that when the death had occurred in his

custody, the appellant is under an obligation to give a plausible explanation for the cause of

her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case

coupled with absence of any explanation were held to be inconsistent with the innocence of

the accused, but consistent with the hypothesis that the appellant is a prime accused in the

commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal; AIR

1992 SC 2045, the medical evidence disclosed that the wife died of strangulation during late

night hours or early morning and her body was set on fire after sprinkling kerosene. The

defence of the husband was that wife had committed suicide by burning herself and that he

was not at home at that time. The letters written by the wife to her relatives showed that the

husband ill-treated her and their relations were strained and further the evidence showed

that both of them were in one room in the night. It was held that the chain of circumstances

was complete and it was the husband who committed the murder of his wife by strangulation

and accordingly this Court reversed the judgment of the High Court acquitting the accused Page No.# 25/28

and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran; (1999)

8 SCC 679, the wife was found dead in a hut which had caught fire. The evidence showed

that the accused and his wife were seen together in the hut at about 9.00 p.m. and the

accused came out in the morning through the roof when the hut had caught fire. His

explanation was that it was a case of accidental fire which resulted in the death of his wife

and a daughter. The medical evidence showed that the wife died due to asphyxia as a result

of strangulation and not on account of burn injuries. It was held that there cannot be any

hesitation to come to the conclusion that it was the accused (husband) who was the

perpetrator of the crime."

63. In dowry death, the conduct of the appellants also becomes very important to explain the

facts and circumstances especially within their knowledge, as required by Sections 106 and

113-B of Indian Evidence Act, that why and how the deceased had received such a severe

burn injury and died and also what efforts were made by the appellants to save the life of the

deceased.

64. Now coming to the fact of the instance case, admittedly the victim had died due to burn

injuries. According to the medical officer, PW-10 90% burn injury was caused to the deceased

due to which her whole body were churred except scalp, perineum, both feet, front of

abdomen. According to prosecution witnesses, they had seen that one blanket was wrapped

on the body of the deceased. As it appears that the deceased had received 90% burn injuries

but no evidence was found as to whether the deceased had made any attempt to save

herself. According to the accused person, she had committed suicide, but there was no

reason or explanation given by the accused persons, due to the reason of committing suicide Page No.# 26/28

by the deceased, within 6 months of her marriage. PW-4 stated in his deposition that when

she visited the house of the accused persons on hearing hue and cry, he found the wife of

the deceased with burn injuries. She was sitting in the courtyard inside the house of the

accused and the deceased wanted water and the water was provided by the sister-in-law of

the deceased and subsequently, she was unable to speak.

65. According to learned counsel for the appellants, the appellants were not at home, i.e.,

at the place of occurrence, when the incident took place. The appellants in their statements

recorded under Section 313 CrPC, also stated that at the time of occurrence, the deceased

was cooking food and subsequently, she sustained burn injuries on her person. They have

also stated that at the time of occurrence, they were not present at their home. Seeing the

flame of fire and hearing the noise, they reached their home and put off the fire, but in their

statements they have not disclosed specifically as to when and where all the appellants had

gone from their house, leaving the deceased alone inside the house. They have also not

produced any witness in support of the plea taken in their defence either to prove the plea of

alibi or efforts made by them to save the victim. It is not the case of the appellants that the

deceased had committed suicide by closing the door of the house or kitchen. Non-presence of

appellants at their house without any justifiable cause in the morning hours makes the

conduct of the appellants highly doubtful, in view of law laid down by the Apex Court in the

case of Trimukh Maruti (supra).

66. Now, it is also to be seen whether the death of the deceased was unnatural, suicidal or

accidental. Submission of learned counsel for appellants in this regard is that the deceased

had died due to fire, while she was cooking food and another plea was taken that she had Page No.# 27/28

committed suicide. For offence under dowry death as provided under Section 304 (B) IPC, the

nature of death is required either caused by burn or bodily injury or any other under

abnormal cirucmstnaces. Thus, any unnatural either homicidal or suicidal is covered under

Section 304 (B) IPC and if the cause of death of a woman as required under Section 304-B

IPC is proved by the prosecution, the burden of proof shifts on the accused to prove that the

deceased's death was natural or accidental. In the instant case, it is clear that the deceased

was found in burnt condition inside the house of the accused and one blanket was wrapped

up on her body and no evidence was found that either any attempt was made either by her

to resist or save herself from such fire, because if it was an accident deceased would have

made efforts to save herself, which shows that the death of the deceased was neither

accidental nor natural. The appellants had also not produced any evidence either in their

defence to rebut the statutory presumption provided under Section 113-B of Evidence Act.

67. In view of the above discussions, in my view, the prosecution has succeeded to prove

its case that the deceased was being harassed and tortured for want of dowry. She had died

due to burn injuries within six months of her marriage and she was tortured and harassed for

demand of dowry soon before her death.

68. In the result, the appeal is dismissed. Both the appellants are directed to surrender

before the learned trial Court to serve out the sentence. It appears from the record that the

accused appellants were convicted under Section 304(B) IPC and sentenced to undergo

Rigorous Imprisonment for 7 years and to pay fine of Rs. 1000/- each, but as per proviso to

Section 304 B (2) IPC, which reads as under:-

"Section 304 B (2) Whoever commits dowry death shall be punished with imprisonment for a Page No.# 28/28

term which shall not be less than seven years but which may extend to imprisonment for life."

69. Hence, the fine amounting to Rs. 1000/- each was wrongly imposed by the learned trial

Court. Hence, fine if paid, any, be refunded to the accused appellants accordingly. But the

conviction to undergo Rigorous Imprisonment for 7 years is upheld. The period which they

detained in custody shall be set off from the period of imprisonment imposed on them.

70. Send down the LCR.

JUDGE

Comparing Assistant