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(AFR)(Reserved)

Court No. - 46

[Case :- CRIMINAL APPEAL No. - 917 of 2006]

Appellant :- Sanjay Kumar

Respondent :- State of U.P.

Counsel for Appellant :- Satish Chandra Misra,Dileep Kumar,Pramod

Kumar Pandey,R.B. Chaudhary,R.Bhargava,Rajrshi Gupta,Shesh Narain

Mishra

Counsel for Respondent :- Govt. Advocate

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Kunvar Srivastav,J.

{As per Vikas Kunvar Srivastav, J.}

1. The instant Criminal Appeal has been preferred against the

judgment of conviction and order of sentence dated 24.01.2006

passed by the learned Additional Sessions Judge, Court no. 6,

Basti in Sessions Trial No. 276 of 2000, under Sections 498-A,

304-B of Indian Penal Code, 1860 read with Section ¾ of Dowry

Prohibition Act.

2. On behalf of accused-appellant, learned Amicus Curiae Sri

Pramod Kumar Pandey argued the case whereas the State-

respondent is represented by the learned Additional Government

Advocate Ms. Arti Agarwal.

3. Vide impugned judgment of conviction and order of sentence,

dated 24.01.2006, the appellant is convicted under Sections 498-

A, 304-B IPC read with Section ¾ of Dowry Prohibition Act,

Police Station Lalganj, District Basti and sentenced with life

imprisonment under Section 304-B IPC. Under Section 498-A

IPC two years rigorous imprisonment and fine of Rs. 2000/-; in

default of payment of fine six months additional rigorous

imprisonment. Under Section ¾ of the Dowry Prohibition Act one

year rigorous imprisonment. All the sentences are to run

concurrently.

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FACTUAL MATRIX OF THE CASE

4.Briefly stating the prosecution case as emerges from the written

information dated 27.08.2000 submitted in the Police Station

Lalganj, District Basti by the brother of the deceased, is that the

informant’s sister was married with the accused-appellant Sanjay

Kumar, resident of village Dei Saar, Police Station Lalganj, District

Basti, approximately 5 years ago (27.08.2000). It is complained

that Sanjay Kumar and his father Daya Shanker and mother

Dhanpati @ Kanchan were not satisfied with the gifts and dowry

given to them at the time of marriage, therefore demanded

‘Rajdoot’ motorcycle in dowry repeatedly. The father of the

informant had already died and the family of the informant was not

sound financially, therefore, they could not fulfil the demand of

motorcycle in dowry. Due to this, the accused persons, Sanjay

Kumar and his parents were harassing his sister, the deceased

Islawati Devi. On the complaint made by the informant’s sister, the

informant met her in-laws with folded hands and told that he was

not in a position to gift motorcycle in dowry. Being annoyed by the

denial, the accused persons, on 27.08.2000, caused death of

Islawati, informant’s sister by burning her. After getting information

of the incident when the informant, Mani Ram Chaudhary reached

at the matrimonial house of his sister and asked the accused Daya

Shanker, he told that she had died.

5. The First Information Report was lodged on the said information

registering the criminal Case No. 98 of 2000 on 27.08.2000 at

about 9:35 p.m. against Sanjay Kumar (the present appellant),

Daya Shanker and Dhanpati Devi (the parents of the appellant

Sanjay Kumar). On 29.08.2000, the informant Mani Ram

Chaudhary applied to add the name of Ram Singh S/o Daya

Shanker, brother of the accused-appellant Sanjay Kumar as an

accused making harassment and cruelty committed on the

deceased Islawati Devi in connection with the demand of dowry.

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6. After registering the First Information report, the Investigating

Officer reached at the spot of the incident, collected the plain and

blood stained soil, other material and articles found near the dead

body including one plastic container of kerosene oil of half a litre,

the ash of the spot and prepared the relevant memos on

08.08.2000.

7. The inquest proceeding was conducted on 28.08.2000 and

concluded on the same day at about 1:00 p.m. The Investigating

Officer formed an opinion that the death was caused by burning

and sent it for post-mortem with constables Ram Narain Singh and

Sriram Pandey on the same day.

8. The plea of alibi is taken by learned the Amicus Curiae on behalf of

the accused-appellant Sanjay Kumar.

9. The post-mortem was conducted on 29.08.2000 at about 4:00 p.m.

The age of the deceased was mentioned about 26 years. The

doctor opined that the death occurred 2-3 days ago. Following

ante-mortem injuries were reported:

“1. Contusion on left side of face 6cm x 4cm just interior to left ear.

2. Contusion on the back of head 5cm x 4cm.

3. Contusion upper part of chest 22cm x 15cm.

4. Contusion 6cm x 4cm front of upper left arm found above left

elbow.”

10.After collecting incriminating material from the spot of the incident,

recording evidence of witnesses, the Investigating Officer

concluded the investigation and submitted the chargesheet,

whereupon after hearing the parties, charges against three

accused persons, namely Sanjay Kumar, Daya Shanker and

Dhanpati Devi @ Kanchan were framed on 22.02.2001 and

subsequently in a separate Sessions Trial against Ram Singh

bearing Sessions Trial No. 247 of 2001 also charges were framed

on 23.10.2001 under Sections 498-A, 304-B IPC read with Section

¾ of Dowry Prohibition Act.

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11.The prosecution produced the following oral and documentary

evidences before the trial Judge:

P.W.-1, the informant, Mani

Ram Chaudhary (brother of

the deceased)

Proved the written complaint (Ex.

Ka.1)

Proved the Application (Ex. Ka.2)

P.W.-2, Ram Karan (brother of

the deceased)

P.W.-3, S.K. Chaudhary

P.W.-4, Malti Devi (Mother of

the deceased)

P.W.-5, Radhey Shyam Proved Panchayatnama as Ex. Ka.

P.W.-6, Ram Narain Singh

P.W.-7, Dr. P.N. Singh Proved Post mortem report Ex. Ka-6.

P.W.-8, Diwakar Kumar, Sub

Inspector

1. Proved the recovery memo of blood

stained and plain earth. (Ex. Ka.-4)

2. Proved the recovery memo of Ash

and Earth (Ex. Ka.-5)

P.W.-9, Chedhi Prasad Yadav,

Station House Officer

P.W.-10, Vidya Sagar Sharma,

Head Moharrir

P.W.-11, Sri Ram Pandey,

Constable

One witness in defence

Arjun as D.W.-1

12.After the prosecution witnesses, the accused persons were

examined under Section 313 Cr.P.C. and ultimately the trial judge

convicted the present accused-appellant Sanjay Kumar for the

offence under Sections 498-A, 304-B IPC read with Section ¾

Dowry Prohibition Act. The accused Daya Shanker and Dhanpati

Devi @ Kanchan in Sessions Trial No. 276 of 2000 and Ram Singh

in Sessions Trial No. 247 of 2001 were acquitted for all the

charges levelled against them under Sections 498-A, 304-B IPC

read with Section ¾ of Dowry Prohibition Act. As such, the present

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accused-appellant Sanjay Kumar is the sole accused before this

court.

ARGUMENTS OF THE LEARNED COUNSELS

13.Learned Amicus Curiae on behalf of the accused-appellant argued

that the factum of demand of dowry is not proved as the evidence

with regard to the demand of dowry is lacking. There is no

complaint either in the police station or any other Forum like village

Panchayat or before the respected elders of the family of cruelty in

connection with the demand of dowry either by the deceased

Islawati or by her brother. For the first time after death of the

deceased the allegations of demand of dowry came in the written

information given by the brother of the deceased.

14.He further urged that even the inquest witnesses had not stated

any sign of cruelty on the person of deceased just before her

death. The deceased was reported to have been treated with

cruelty and harassment by the informant on his own by reason of

her death due to burning.

15.Learned Amicus Curiae further argued that no specific role of

demand of dowry and committing cruelty in connection therewith to

can be assigned to the accused-appellant. The informant, PW-1

and other witnesses of the fact have stated that the demand of

dowry and cruelty committed in connection therewith was made by

all the accused persons including the present accused-appellant,

though there is no evidence exclusively against the present

accused-applicant. Once on the same evidence when other

accused persons were acquitted, the learned trial judge had

committed an error in recording the conviction of the present

accused-appellant Sanjay Kumar only. The learned trial judge thus

has passed the impugned judgment of conviction and order of

sentence dated 24.01.2006 without considering the material on

record. The sentence is too severe being the maximum as

provided under Section 304-B IPC which is disproportionate to the

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guilt, if any. The prosecution had been unsuccessful in proving it’s

case beyond all reasonable doubt. No specific motive against the

appellant is proved. On the basis of the contentions made by him,

learned Amicus Curiae prays to set aside the judgment of

conviction and order of sentence and to allow the appeal.

16.Learned Additional Government Advocate Ms. Arti Agarwal replying

the arguments made by learned Amicus Curiae on behalf of the

accused-appellant argued that the prosecution has successfully

proved all the ingredients to constitute the presumptive offence

under Section 304-B IPC with regard to dowry death, namely:

(I) unnatural death of the wife ;

(ii) death within 7 years of marriage ;

(iii) demand of dowry and ;

(iv) cruelty done with the deceased in connection with demand of

dowry soon before her death.

17.Learned AGA contended that on the date of the incident, the

deceased, “Islawati” was a young lady of 26 years of age.

Undoubtedly, her death was unnatural as is evident from the post-

mortem report. The injuries apart from burn injuries found in the

arm of the person of the deceased show that the deceased was

subjected to brutality and cruelty soon before her death. Learned

AGA has further contended that the post-mortem report reveals

that the deceased was strangulated before her death as hyoid

bone was broken. She further contended that the dead body was

found in the matrimonial house of the deceased Islawati of which

the accused appellant was a normal resident. No plausible

explanation could be given by him. He rebut the presumption

against him. The material circumstances were enough to presume

it is a case of dowry death against the accused-appellant. The

defence has remained unsuccessful in eliciting any fact during

cross-examination of the prosecution witnesses which may be

considered as the fact sufficient to rebut the presumption.

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18.The plea taken in defence of alibi had not been proved by the

defence during trial. The prosecution had established it’s case

beyond all reasonable doubt against the appellant, therefore there

may not be any interference with the judgment of conviction and

order of sentence. The appeal deserves to be dismissed.

[DISCUSSIONS]

LAW RELATING TO DOWRY DEATH

19.From the facts, circumstances of the case and evidences on

record, the case against the present accused-appellant is of dowry

death which is a presumptive offence under Section 304-B IPC.

For the purpose of easy reference in discussions, Section 304-B

IPC be quoted hereunder:

[304-B. Dowry death.—“(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. Explanation. For the purpose of this sub-section,

“dowry” shall have the same meaning as in section 2 of the

Dowry Prohibition Act, 1961 (28 of 1961).

(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.]”

20.As can be seen from the aforesaid provision, for convicting the

accused for an offence punishable under Section 304B IPC, the

following pre-requisites are required to be met:

(i) that the death of a woman must have been caused by burns or

bodily injury or occurred otherwise than under normal

circumstance;

(ii) that such a death must have occurred within a period of seven

years of her marriage;

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(iii) that the woman must have been subjected to cruelty or

harassment at the hands of her husband soon before her death

and ;

(iv) that such a cruelty or harassment must have been for or

related to any demand for dowry.

21.The explanation appended to Section 304B IPC states that the

word “dowry” shall have the same meaning as provided in Section

2 of the Dowry Prohibition Act, 1961 which reads as follows:

“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 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.”

22.The presumption of dowry death arises when the death caused is

unnatural within 7 years of the marriage in the matrimonial home

and soon before the unnatural death of the wife, there is evidence

of cruelty committed on her before her death in connection with the

demand of dowry. It would also be pertinent to reproduce Section

498-A IPC as under:

“Section 498A in The Indian Penal Code

498A. Husband or relative of husband of a woman

subjecting her to cruelty.—Whoever, being the husband or

the relative of the husband of a woman, subjects such

woman to cruelty shall be punished with imprisonment for a

term which may extend to three years and shall also be

liable to fine. Explanation.—For the purpose of this section,

“cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to

drive the woman to commit suicide or to cause grave injury

or danger to life, limb or health (whether mental or physical)

of the woman; or

(b) harassment of the woman where such harassment is

with a view to coercing her or any person related to her to

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meet any unlawful demand for any property or valuable

security or is on account of failure by her or any person

related to her to meet such demand.”

23.In this connection to appreciate the nature of presumption, we find

it relevant to note Section 113-B of Indian Evidence Act, 1972 as

under:

“Section 113B in The Indian Evidence Act, 1872

[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 has been subjected by such person to cruelty or

harassment for, or in connection with, any demand for

dowry, the Court shall presume that such person had

caused the dowry death. Explanation.—For the purposes of

this section, “dowry death” shall have the same meaning as

in section 304B, of the Indian Penal Code, (45 of 1860).]”

WHETHER DEATH CAUSED WITHIN 7 YEARS OF

MARRIAGE

24.According to the case of the prosecution, the marriage of

deceased Islawati with appellant Sanjay Kumar was solemnized 5

years prior to the incident dated 27.08.2000. The written

information of the incident has proved by the brother of the

deceased Mani Ram Chaudhary (PW-1) and marked as Exhibit

Ka-1. PW-1 categorically stated in the examination in chief that the

marriage of his sister, the deceased, was solemnized 5 years ago

and denied the suggestion that he gave statement to the

Investigating Officer that the deceased got married in the year

1988.

25.PW-2, Ramkaran, another brother of deceased Islawati also stated

that the marriage was solemnized approximately 5 years ago from

the date of incident. In the course of cross examination, it was

suggested that this witness in his previous statement to the

Investigating Officer stated that the marriage of his sister Islawati

was solemnized in the year, 1988 and the ritual of “Gauna” was

performed in the year, 1995. PW-2 denied that no such statement

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was given to the Investigating Officer. Apart from this suggestion,

nothing could be elicited by the learned defence counsel to

establish the marriage of the deceased Islawati with the accused

Sanjay in the year, 1988.

26.PW-3 Shyam Karan Chaudhary, brother of the deceased Islawati in

his cross examination has specifically stated with the marriage of

deceased Islawati was solemnized with accused Sanjay in the

year, 1995. This witness also stood firmly in the cross examination

with regard to the period of marriage.

27.PW-4 Malti Devi W/o Shyam Karan (PW-3) who sister-in-law of

deceased Islawati also stated she got married before the marriage

of deceased Islawati and that she came to her in-laws house

before the marriage of the deceased. She was examined before

the trial court on 17.05.1995 and stated that the marriage of

deceased was solemnized approximately 9 years ago from the

date she was examined. PW-4 also stated that she had witnessed

the marriage of the deceased. Nothing could be carved out by the

learned counsel for the defence in contradiction to the statement of

other witnesses with regard to the period of marriage of deceased

Islawati with accused Sanjay Kumar.

28.All the four witnesses of fact are consistent in proving the marriage

of the deceased Islawati with accused Sanjay Kumar

approximately 5 years ago from the date of the incident. The

prosecution, thus, became successful in proving the incident of

bride burning as informed by the first informant, PW-1, occurring

within a period of five years’ of matrimonial life of the deceased

Islawati with accused Sanjay Kumar.

DEMAND OF DOWRY

29.The fact of demand of dowry can be disclosed most probably and

very naturally by the sufferer i.e. the wife (In the present case

decesed Islawati) herself and the inmates of her paternal house

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like her mother, brother or other near relatives with whom she

might have shared the fact of demand having been made to her. In

the case before us, PW-1, PW-2, PW-3 are the brothers of the

deceased and PW-4 is her sister-in-law (wife of the brother of the

deceased, namely, Shyam Karan). Narrating their conversation

with the deceased during her life time the witnesses have stated

before the court with regard to demand of motorcycle in dowry.

PW-1 stated that their father had died before the marriage of

Islawati and according to their financial capacity, they had given

sufficient dowry in the marriage but the accused Sanjay Kumar, his

parents and one real uncle Ram Singh were pressing the demand

for motorcycle in the dowry. PW-1, the elder brother of the

deceased with folded hands met the in-laws of his deceased sister

and begged pardon for not fulfilling their demand of motorcycle in

dowry and requested not to torture his sister in connection with

their unfulfilled demand but they continued torturing and treating

the deceased Islawati with cruelty in connection with their

unfulfilled demand and ultimately P.W.-1 got the information of his

sister’s death by burning in her in-laws house. When he reached to

the matrimonial house of the deceased, her father-in-law Daya

Shanker met and told his sister had died. He immediately moved to

the police station, gave the written information of the incident to

lodge the First Information Report. This witness when confronted

stated that before the marriage, no terms of dowry were settled but

when his sister came from her matrimonial house to her paternal

home, she told about the demand of motorcycle in dowry. P.W.-1

was further confronted as to when the said demand was made, he

replied that the demand was made in the very year in which the

marriage of Islawati was solemnized. This witness in the cross

examination, thus, had proved that the demand of motorcycle in

dowry was made to the deceased Islawati soon after her marriage.

30.Contrary to this proved fact when the accused persons were

confronted with the same, they simply stated that marriage of

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Islawati with accused Sanjay Kumar was solemnized 8 years ago

from the date of alleged incident. Except this bare statement under

Section 313 Cr.P.C., neither any inconsistency could be carved out

in the cross examination of prosecution witness that the

solemnization of marriage 8 years prior to the date of the incident

nor the accused had adduced any evidence to prove their version.

31.In the cross examination of P.W.-1, it has come that the deceased

Islawati was educated up to 10

th

standard, a query was then made

to PW-1 whether any letter was written by her in relation to the

demand of dowry which he denied. But P.W.-2 also denied the

suggestion that letter was not written as there was no such

demand nor any cruel treatment in connection with demand of

dowry was ever made to her.

32.So far as the threat of life if the demand of motorcycle as dowry is

concerned, PW-4, the sister-in-law of the deceased stated that

deceased Islawati when visited her house, shared the trouble she

was facing relating to the demand of dowry and cruel treatment by

her in-laws in connection with the said demand. P.W.-4 stated that

the deceased also shared the threat given to her that if the

demand of motorcycle was not fulfilled, she (Islawati, the

deceased) would be killed and second marriage would be

performed. In the cross examination also P.W.-4 stood

uncontradicted and consistent with her statement as to the threat

of life to deceased Islawati. The other witnesses of fact PW-2 and

PW-3 also stated that the deceased had shared threat to her life

given by the accused persons in case the demand of motorcycle in

dowry was not fulfilled. PW-2 and PW-3 Shyam Karan stated that

their younger brother Mani Ram (PW-1) used to visit their sister in

her matrimonial house frequently and he then became conversant

with the fact of demand of dowry and subsequently killing of

deceased. By oral evidence, the witnesses PW-1, PW-2, PW-3

and PW-4 had proved the demand of motorcycle in dowry and also

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torture and beating of the deceased in connection with the said

demand.

33.Anything contrary to the said proved facts could not be carved out.

Even no evidence had been adduced in defence.

UNNATURAL DEATH AND MEDICAL EVIDENCE

34.The witnesses of fact, namely, PW-1 to PW-4 proved that they

came to know that her sister was burnt and killed by her in-laws

when PW-1 rushed to know about the well being of her sister and

reached her matrimonial house, her father-in-law informed that she

had died. Neither the accused informed the unnatural death of the

deceased nor they took her to the hospital to get her all possible

treatment. This conduct is also a relevant fact which lead to an

inference that the unnatural death was caused due to burn injuries

caused by her in-laws and the motive was unfulfilled demand of

motorcycle in dowry.

35.The inquest of the dead body after registration of the First

Information Report on 27.08.2000 was done on 28.08.2000. The

informant of the incident was Mani Ram Chaudhary PW-1 and no

in male from the matrimonial house of the deceased. The spot of

the incident of burning and death of the deceased, as described in

the inquest report, is the matrimonial house of the deceased. The

prima facie reason of unnatural death is assigned in the inquest

report to the accused that they caused death by burning. The

inquest proceeding is proved by the witness of the inquest, namely,

Radhey Shyam as PW-5. He proved his signature on the inquest

proceeding marked as Exhibit Ka-3. This witness also proved the

collection of blood stained soil from the spot of the incident and

plain earth soil therefrom by the Investigating Officer. The memo of

the aforesaid is proved by him as Exhibit 3Ka/5. This witness has

further stated that on the spot, at the time of the inquest, a

container of kerosene oil was also found and the recovery memo

was prepared by the Investigating Officer and he witnessed the

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recovery by making the signature on memo marked as Exhibit 3K/

6. Apparently, according to this witness, no apparent injury was

found on the burnt body but in view of the fact, collecting blood

stained soil from the spot, the aforesaid portion of the statement

suffers from obscurity. The body was, however, sent for the post-

mortem.

36.The post-mortem examination was done on 29.08.2000 about 4:00

p.m. The doctor PW-7 observed that the dead body was 2 to 3

days old and the deceased was about 26 years of age. He

observed the condition of the body as follows:

“Body swolen, both eyes, skin pealed off at places bulges

out conjunctiva congested. Tongue protruded out of mouth

4cm in length. Abdomen burst open, intestine coming out.

Protruded tongue is blackened due to partial burn. Tip of

the tongue lacerated. Indentation of teeth present in lower

surface of tongue.”

37.The ante-mortem injuries found on the body are:

(I) contusion on the left side of the face of 6cmx4cm just interior to

left ear

(ii) contusion on the back of head 5cmx4cm

(iii) contusion upper part of chest 22cmx15cm

(iv) contusion 6cmx4cm front of the upper left arm from above left

elbow.

38.The doctor had opined that post-mortem burn was present all over

the body. Scorching of hair present on the head scalp, most of hair

were completely burnt. The smell of kerosene oil present on scalp

hair and remaining part of cloth. The right cornua of hyoid bone

was fractured. Extravascular of blood muscles present. On the

internal examination of the dead body, the doctor found a wound

on the head, the liquification of the brain started. No smoky

particles were present in the Bronchi. Lungs were congested,

pericardium congested, heart both chambers empty, the abdominal

was ruptured and intestines were coming out. Stomach empty,

saces and pulpy matter present in small intestine gas faecal matter

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present. Putrifacation of liver started. The doctor had opined that

the death of the deceased was caused by result of asphyxia due to

strangulation of neck. This report was proved by doctor as Exhibit

K-6

39.In the cross examination, PW-7 had denied any ligature mark on

the neck of the deceased and no mark of fingers or thumb were

also found.

40.The burn injuries and scars on the dead body were opined by PW-

7, the doctor as post-mortem injuries i.e. subsequent to the killing

of the deceased. On a suggestion, the doctor stated that if after

death clothes of the deceased caught fire, post mortem burn could

occur. It is also apparent from the internal examination that there

were no smoke particles in the bronchea. This clearly shows that

when the body was being burnt, the victim was not in a vital

condition or alive so as to inhale the smoke particles. Likewise, the

autopsy fining post-mortem burn all over body. Ante-mortem

injuries found on the person of the deceased is attributable to the

violent death. The presence of acclerants used and violent sings

are factors indicating ‘post mortem burning’ following homicidal

death. The above fact reflecting from the post-mortem examination

and the opinion of doctor clearly proved the homicidal death of the

deceased and, thereafter, burning of the dead body by the

accused.

41.On going through the report of the inquest coupled with the post-

mortem examination, it is established that the deceased was first

beaten brutally then she was strangulated and finally when she

died, her body was tried to emulate in fires pouring kerosene oil on

it. The ante-mortem injuries mentioned in the post-mortem report,

collection of blood stained soil reported in the inquest by the

Investigating Officer are sufficient to establish the offence of

torturing, beating and cruelly committed on the deceased soon

before her death by the accused. The ante-mortem injuries reveal

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that the deceased was subjected to extreme cruelty soon before

her death, particularly in proximity to the death caused by the

accused.

42.The Import of the provisions of Section 498A, 304-B IPC and

Section 113-B of the Indian Evidence Act has been explained in

several decisions of the Apex Court. In Bansi Lal Vs. State of

Haryana [(2011) 11 SCC 359], it has been held that:

“17. While considering the case under Section 498-A (Sic.

Section 304-B), cruelty has to be proved during the close

proximity of time of death and it should be continuous and such

continuous harassment, physical or mental, by the accused

should make life of the deceased miserable which may force her

to commit suicide.”

43.In Maya Devi and Anr. Vs. State of Haryana [(2015) 17 SCC

405], it was held that:

“23. To attract the provisions of Section 304-B, one of the main

ingredients of the offence which is required to be established is

that “soon before her death” she was subjected to cruelty or

harassment “for, or in connection with the demand for dowry”.

The expression “soon before her death” used in Section 304-IPC

and Section 113-B of the Evidence Act is present with the idea of

proximity test. In fact, the learned Senior Counsel appearing for

the appellants submitted that there is no proximity for the alleged

demand of dowry and harassment. With regard to the said claim,

we shall advert to while considering the evidence led in by the

prosecution. Though the language used is “soon before her

death”, no definite period has been enacted and the expression

“soon before her death” has not been defined in both the

enactments. Accordingly, the determination of the period which

can come within the term “soon before her death” is to be

determined by the courts, depending upon the facts and

circumstances of each case. However, the said expression

would normally imply that the interval should not be much

between the cruelty or harassment concerned and the death in

question. In other words, there must be existence of a proximate

and live link between the effect of cruelty based on dowry

demand and the death concerned. If the alleged incident of

cruelty is remote in time and has become stale enough not to

disturb the mental equilibrium of the women concerned, it would

be of no consequence.”

44.On the basis of the evidence led by the prosecution, we find that

there is sufficient linking of the chain of circumstances which

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produce the following picture of the entire incident from the very

inception till the end, namely:-

(I) The deceased “Islawati” was married with accused Sanjay S/o

Daya Shanker and Dhanpati 5 years prior to the date of the

incident occurred on 28.07.2000;

(ii) The body of the deceased was found in the matrimonial house

of the deceased in the burnt state and there are consistent

evidence that the death was caused otherwise than under normal

circumstances;

(iii) The deceased was at her matrimonial house prior and at the

time of her death;

(iv) The information of the death of the deceased was not given to

her brother;

(v) The deceased was subjected to assault and cruel treatment by

the accused person who is her husband;

(vi) The act of cruelty and harassment was in connection with the

demand of dowry and was made soon before her death.

NO EXPLANATION BY THE ACCUSED

45.All the incriminating circumstances were put to the accused-

appellant Sanjay who while denying them being false offered an

explanation that he was falsely implicated due to enmity. To the

question as to whether he wanted to produce any defence, the

answer was ‘yes’. However, no defence was produced by accused

Sanjay. The defence witness D.W.-1 was produced to support of

plea of alibi of co-accused Ram Singh who is not before us.

Absolutely no explanation was offered by the appellant Sanjay as

to what had happened in the house on the fateful day, admittedly

wherein he was present.

46.It is proved that the deceased was normally living in her

matrimonial house with her husband accused Sanjay Kumar prior

18

to the incident in question, her dead body was found with several

wounds, injuries and signs of torture and beating on it including the

evidence of strangulation and the death was caused by asphyxia

which is proved. In such circumstances what happened in the

matrimonial house with the deceased and how the wounds and

injuries were sustained on the person of the deceased as ante-

mortem injuries are the facts, particularly within the knowledge of

the accused-Sanjay as there is absolutely no evidence on record

nor it was alleged that he was not present in the house on the

fateful day when the deceased was alive just prior to the incident,

no explanation at all had been offered by the accused despite

opportunity given to him.

47.The prosecution has discharged its initial burden beyond all

reasonable doubt that the murder of deceased Islawati was

committed in the secrecy of her matrimonial house wherein

accused Sanjay was normally residing with her. The dead body

was found with signs of beating and cause of death reported is

asphyxia by strangulation. The presence of accused with the

deceased when she was alive is proved beyond doubt. Resultantly,

under Section 106 of Evidence Act, 1872, there is a corresponding

burden on the accused-husband to give cogent explanation as to

how the crime was committed. The appellant cannot get away by

keeping mum.

48.In the Case of Trimukh Maroti Kirkan Vs. State of Maharashtra

[(2006) 10 SCC 681], the Apex Court in para 14 and 15 has held

as under:

“14. If an offence takes place inside the privacy of a house

and in such circumstances where the assailants have all

the opportunity to plan and commit the offence at the time

and in circumstances of their choice, it will be extremely

difficult for the prosecution to lead evidence to establish

the guilt of the accused if the strict principle of

circumstantial evidence, as noticed above, is insisted upon

by the Courts. A Judge does not preside over a criminal

trial merely to see that no innocent man is punished. A

Judge also presides to see that a guilty man does not

19

escape. Both are public duties. (See Stirland v. Director of

Public Prosecution quoted with approval by Arijit Pasayat,

J. in State of Punjab vs. Karnail Singh (2003) 11 SCC

271). The law does not enjoin a duty on the prosecution to

lead evidence of such character which is almost

impossible to be led or at any rate extremely difficult to be

led. The duty on the prosecution is to lead such evidence

which it is capable of leading, having regard to the facts

and circumstances of the case. Here it is necessary to

keep in mind Section 106 of the Evidence Act which says

that when any fact is especially within the knowledge of

any person, the burden of proving that fact is upon him.

Illustration (b) appended to this section throws some light

on the content and scope of this provision and it reads:

“(b) A is charged with traveling on a railway without ticket.

The burden of proving that he had a ticket is on him."

“15. Where an offence like murder is committed in secrecy

inside a house, the initial burden to establish the case

would undoubtedly be upon the prosecution, but the

nature and amount of evidence to be led by it to establish

the charge cannot be of the same degree as is required in

other cases of circumstantial evidence. The burden would

be of a comparatively lighter character. In view of Section

106 of the Evidence Act there will be a corresponding

burden on the inmates of the house to give a cogent

explanation as to how the crime was committed. The

inmates of the house cannot get away by simply keeping

quiet and offering no explanation on the supposed premise

that the burden to establish its case lies entirely upon the

prosecution and there is no duty at all on an accused to

offer any explanation.”

49.In view of the above discussions based on the proved

circumstances from documentary and oral evidences, we are of

the opinion that in the present case, all the ingredients of Section

304-B read with Section 498-A IPC and Section 113-B of the Indian

Evidence Act are satisfied and there are sufficient evidence and

material for presumption of dowry death of deceased Islawati at

the hands of accused Sanjay, her husband.

GENUNITY OF INVESTIGATION

50.Since the learned counsel for the appellant vehemently argued

stating that the investigation conducted by the I.O. in-genuine, we

think the same to be evaluated in the light of oral and documentary

20

evidences on record. The written information of the incident was

given by reasonable promptness to the police station Lalganj,

District Basti, the submission of written information is proved by

Maniram, the first informant as P.W.-1. The G.D. entry of police

station of F.I.R. is also at serial no.32 on 27.08.2000 at about

21:35 P.M. The chik F.I.R. was prepared and copy of the same was

provided to the informant is also proved whereupon Ex. 3 Ka-17

was endorsed. After registering the F.I.R. bearing Case Crime

No.288 of 2000, under Sections 498-A, 304-B of Indian Penal

Code, 1860 read with Section ¾ of Dowry Prohibition Act against

the present accused-applicant and another accused, the family

members, the Circle Officer started investigation on the same day.

Inquest proceeding was conducted, the body of the deceased

Islawati was sent for post mortem by S.D.M. Vinay Shanker

Choubey. The relevant papers were filled up by the S.I. Narain

Singh, who is examined as P.W.-9. He has proved the said

document as Ex. 3Ka. The collection of blood stained soil, plain

soil in the presence of witnesses under their signatures proved in

the Court by the witness P.W.-9 as Ex. 3 Ka-5. The container of

kerosene oil bearing half liter kerosene oil was also collected

before the witness and memo was prepared in the Court. This is

proved as Ex. 4 Ka-6. As such, lodging of the first information

report and investigation was started promptly without any

unreasonable delay. Inquest proceeding and report is also proved

by Constable Sri Ram Pandey who reproduced into writing the

contents of report on the dictation of SDM, Vinay Shanker

Chaubey.

51.On the basis of above discussions, we do not find any force in the

appeal. The same deserves to be dismissed. The judgment can

not be interfered on the argument as to the disproportionate

quantum of punishment. The dowry death being a long standing

social event and the dowry death of the deceased in the instant

case being pestiferous committed in a scheme of the most brutal

21

manner and cruelty by the covetous husband, the punishment of

life imprisonment, in our considered opinion, is the proportionate

punishment.

52.We find no substance in the submissions of the learned Amicus so

as to interfere in the judgment of conviction and order of sentence

dated 24.01.2006 passed by the trial court.

OPERATIVE

53.On the discussions made hereinabove, we do not find any force in

the appeal of “Sanjay Kumar” filed against the judgment of

conviction and order of sentence dated 24.01.2006 passed by the

learned Additional Sessions Judge, Court no. 6, Basti in Sessions

Trial No. 276 of 2000, under Sections 498-A, 304-B of Indian Penal

Code, 1860 read with Section ¾ of Dowry Prohibition Act. The

appeal accordingly, deserves to be dismissed and is hereby

dismissed.

54.The appellant Sanjay Kumar is in jail. Certified copy of the

judgment be sent to the court below for necessary action and

forwarding to the concerned Jail Superintendent where the

accused appellant, Sanjay Kumar is detained.

55.Lower court record be sent back to the District Judgeship, Basti,

immediately.

56.Before parting with the matter we would like to appreciate the

sincerity, commitment and enthusiasm of Sri Pramod Kumar

Pandey, learned Amicus Curiae for the accused-appellant who

with all reasonable promptness has prepared the case and argued

vehemently on all the relevant issues. In our judgment, we

recommend to pay Rs.12,000/- as remuneration to him. The

payment be made by the registry at the earliest.

Order Date :- 24/05/2022

kkv/

[Vikas Kunvar Srivastav,J.] [Mrs. Sunita Agarwal,J.]