HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgement Reserved on: 11.05.2017

Judgement Delivered on : 10.08.2017

Case :- CRIMINAL APPEAL No. – 6929 of 2011

Appellant :- Sushil Kumar Sharma Others

Respondent :- State Of U.P.

Counsel for Appellant :- Brijesh Sahai,Ajoy Kumar Banerjee,Pankaj Tripathi,Shivam Yadav

Counsel for Respondent :- Govt. Advocate

Hon’ble Ramesh Sinha,J.

Hon’ble Umesh Chandra Srivastava,J.

(Delivered by Hon’ble Umesh Chandra Srivastava,J.)

This Appeal has been filed against the judgement and order dated 29.11.2011 of Additional Sessions Judge, Court No.-1, Mainpuri passed in Sessions Trial No. 246 of 2009, State vs. Sushil Kumar Sharma and 2 others, arising out of Case Crime no. 261 of 2009, P.S. Ghiror, District Mainpuri, whereby the appellants have been convicted under sections 304-B, 498-A I.P.C. and ¾ Dowry Prohibition Act and appellant no. 2 Rambabu Sharma and appellant no. 3 Geeta Devi have been sentenced to 10 years rigorous imprisonment for the offence under section 304-B I.P.C. while appellant no. 1 Sushil Kumar Sharma has been sentenced to life imprisonment for the said offence, all appellants have been sentenced to undergo one year rigorous imprisonment and to pay Rs. 15,000/- fine each and in default to undergo three months additional simple imprisonment for the offence under section 498-A I.P.C. and further to undergo one year rigorous imprisonment and to pay Rs. 5000/- fine each and in default to undergo additional three months simple imprisonment for the offence under section ¾ Dowry Prohibition Act with stipulation that all sentences of the appellants shall run concurrently.

2.Facts giving rise to appeal in brief are given as under.

3.Smt. Sunita, daughter of the first informant Ram Krishna was married to appellant no. 1 Sushil Kumar Sharma on 19.04.2003 according to Hindu rites. She died due to burns in her matrimonial home on 15.05.2009. On coming to know about the death of daughter, the first informant Ram Krishna came to matrimonial home of his deceased daughter on 16.05.2009 and lodged an F.I.R. of cruelty, dowry death and demand of dowry against appellant no. 1 Sushil Kumar Sharma, his father and appellant no. 2 Ram Babu Sharma and his mother and appellant no. 3 Smt. Geeta Devi same day at P.S. Ghiror, District mainpuri which was registered as case crime no. 461 of 2009 under sections 498-A, 304-B I.P.C. ¾ Dowry Prohibition Act. In the said report the police after investigation submitted chargesheet against the appellant under the aforesaid sections in the Court of concerned Magistrate who committed the case to the court of Sessions where charges under the aforesaid sections were framed which the appellants denied and claimed to be tried.

4.The prosecution examined six witnesses, namely P.W.-1 Ram Krishna, the first informant, P.W.-2 Kamlesh, brother of the deceased, P.W.-3 Constable Chunni Lal, scribe of the chick F.I.R. and G.D., P.W.-4 Nayab Tehsildar Rohtash Kumar who conducted inquest proceedings on dead body of the deceased, P.W.-5 Dr. Sudesh Kumar who conducted postmortem examination on dead body of the deceased and P.W.-6 Circle Officer Charan Singh, the Investigating Officer to prove the charges framed against the appellants.

5.Statements under section 313 Cr.P.C. of the appellant were recorded in which they admitted deceased to be the wife of appellant no. 1 Sushil Kumar Sharma, their date of marriage and also that deceased died due to burns in her matrimonial home on 15.05.2009. They, however, denied having raised the additional demand of motorcycle or any thing else from the deceased and subjected her to cruelty and killed her for the said demand being not fulfilled. They also stated that they were not present at their home when the incident took place, rather they were at their field threshing wheat at that time and that they were informed about the incident by a child at the field where after they came to their house and found that deceased was dead. They further stated that after the incident they went to police station to report the incident but the police made them to sit over there and informed the members of parental home of the deceased who then came and father of the deceased lodged report against them. Appellants also examined three witnesses, namely, D.W.-1 Deen Mohammad, D.W.-2 Brijesh and D.W.-3 Shiboo to prove their innocence.

6.The Additional Sessions Judge after having heard the submissions of learned counsel of both sides and having perused the material available on record came to the conclusion that charges framed against the appellants were proved beyond doubt, consequently, he held appellants guilty for the offences and awarded the sentence as stated above against which the present appeal has been filed.

7.We have heard Shri Ajoy Kumar Banerjee, learned counsel for the appellant, Shri Ashish Pandey, learned AGA for the State and perused the material brought on the record.

8.Before proceeding with the submissions advanced by the learned counsel of both sides, we would like to mention in brief what the prosecution and the defence witnesses have said about the incident in their evidence. Their evidence in brief is given as under:-

9.P.W.-1 Ram Kishan is the father of the deceased and the first informant of the case. He has stated that deceased Sunita was his daughter and her marriage with appellant no. 1 Shri Sushil Kumar Sharma was solemnized on 19.04.2003 according to Hindu rites in which he had given dowry to the appellants as per his capacity. He has further stated that appellants started demanding a motorcycle as additional dowry from his daughter which she oftenly used to tell him during her visits to his home. He has further stated that Sushil Kumar Sharma and Sunita had visited his house at the eve of Holi festival and then Sushil Kumar Sharma had again raised the demand of motorcycle from him which he refused expressing his inability as he had to marry his second daughter. He has further stated that he along with his brother in law Ashok Kumar visited the house of the appellants after holi and tried to convince the appellants about his inability to fulfill their demand.

10.In the cross examination he has said that appellants had raised the demand of motorcycle after two years of marriage of the deceased. He has also said that deceased had a daughter aged four years and a son aged about six months when she died. He has also stated that marriage of his second daughter was solemnized two years before the death of Sunita and Sunil Kumar Sharma and Sunita both had attended the said marriage and also that Sushil had raised the demand of motorcycle at the time of marriage of his second daughter also to which he had said that he could fulfill the demand on his financial condition being food only. He has denied that Sunita died of disease like epilepsy and she was under shadow of any bad spirit. He has also denied Sunita being depressed committed suicide or caught fire accidentally.

11.P.W.-2 Kamlesh Kumar is the brother of the deceased. Supporting the prosecution version he has stated that marriage of Sunita with appellant no. 1 Sunil Kumar Sharma was solemnized six years ago. He has further stated that appellants were not satisfied with the presents/dowry given to them at the time of marriage. He has further stated that appellants wanted a motorcycle as additional dowry from Sunita and treated her with cruelty for the said demand, however, in the cross examination he has said that appellants did not raise any dispute for dowry at the time of marriage of Sunita, they were satisfied with the dowry given at the time of marriage. He has stated that appellants raised the demand of motorcycle after two years of marriage of Sunita and appellant no. 1 Sunil Kumar Sharma had raised the demand of motor cycle at the time of marriage of his second sister. He has denied that his sister Sunita died of epilepsy.

12.P.W.-3 Constable Chunni Lal has proved the chik F.I.R. Ext. Ka-3 and copy of G.D. Ext. Ka-4.

13.P.W.-4 Naib Tahsildar Rohitash Kumar has proved the inquest report of the deceased and has stated that he had conducted inquest proceedings on the dead body of the deceased under the order of Sub Divisional Magistrate, Mainpuri.

14.P.W.-5 Dr. Subodh Kumar has proved the postmortem report Ext. Ka-9 and has said that he had conducted postmortem examination on the dead body of the deceased on 16.05.2009 at 03:30 p.m. in District Hospital Mainpuri. He has further stated that at the time of postmortem examination deceased Smt. Sunita Sharma had “100% burn injury on the body with roasting charring at places – face, right thigh. Limbs flexed, Arms fixed, fingers hooked like clew i.e. the body is in pugilistic appearance. Cracks fissures Lac. wound of the skin tissues present at places. No blood clot”.

15.He has further stated that death of deceased was caused due to shock as a result of burn injuries and it was about one day old.

16.P.W.-6 Circle Officer Charan Singh has stated that he had taken investigation of the case on 16.05.2009 and thereafter immediately proceeded to the place of occurrence and recovered a plastic can of kerosine oil from there and prepared its memo i.e. Ext. Ka-11. He has further stated that after completing investigation he had submitted the charge sheet against the applicant.

17.D.W.-1 Deen Mohammad is the resident of the locality of the appellants and he is a sorcerer who practices Jhar Phook. He has stated that daughter in law of appellant nos. 2 3 had the disease of having attacks and she used to be taken to him for practicing Jhar Phook upon her. He has further said that he had practiced Jhar Phook upon the deceased many times but she did not get well and died. He has further said that deceased was fed up with her life and she oftenly used to say that it is better to die than having lived such life.

18.D.W.-2 Brijesh claims to be a tenant in the house of appellants. He has stated that deceased had tendency of having frequent attacks and she used to be taken to some Sorcerer for the treatment of the said attacks but she was not cured. However, in the cross examination he has said that he did not know the cause of death of deceased and he has no proof of being tenant in the house of the appellants.

19.D.W.-3 Shiboo, a child, is the resident of the locality of the appellants. He has stated that alleged incident had taken place in the evening at about 6:30 p.m. and deceased was then alone at her home while appellants were at their field threshing wheat. He has further said that having seen deceased caught with fire he immediately rushed to the field of the appellants and told them about the incident.

20.Learned counsel for the applicants has submitted that learned Court below has erred in holding appellants guilty for the offence of dowry death as its findings are based on no evidence. He has further submitted that dowry death has been defined in sub-section (1) of section 304 I.P.C. and according to this, a dowry death can be said to have been committed on fulfillment of the following conditions:-

1. Death of the woman should be caused within seven years of her marriage;

2. Death should be caused by burns or bodily injury or it should be otherwise than under normal circumstances;

3. It should be shown that soon before her death, she was subjected to cruelty or harassment;

4. The cruelty or harassment should be caused by her husband or any relative of her husband; and

5. The cruelty or harassment should be for, or in connection with any demand of dowry.

21.Learned counsel for the appellants has submitted that on fulfillment of the aforesaid five conditions only a dowry death can be said to have been caused, otherwise not. He has further submitted that in the case in hand, there is no dispute that death of deceased Sunita was caused within seven years of her marriage and it was due to burns and appellants are husband and the relatives of her husband. However, so far as other two conditions are concerned, there is no evidence that deceased was soon before her death subjected to cruelty or harassment by the appellants and it was for, or in connection with demand of dowry. Thus, it is submitted that when two of the five conditions are not fulfilled, the learned Court below should not have held appellants guilty for the offence of dowry death as on fulfillment of all five conditions only, they could be held guilty, otherwise not.

22.Learned counsel for the appellants has further submitted that section 113B of Indian Evidence Act deals with persumption with regard to the dowry death and, according to the provisions of this section, when there is a question whether a person has committed the dowry death of a woman and it is shown that soon before her death the woman had been subjected by such person to cruelty or harassment for, or in connection with demand for dowry, the Court shall presume that such person has caused the dowry death. It is further provided that dowry death shall have the same meaning as under section 304 B I.P.C. Thus, learned counsel has submitted that appellants may be presumed to have committed the offence of dowry death only when it is proved that deceased had been soon before her death subjected to cruelty or harassment for, or in connection with any demand for dowry by the appellants and since it is not proved in the present case that soon before death deceased had been subjected to cruelty or harassment for, or in connection with demand of dowry, the finding recorded by the learned court below holding the appellants guilty for the offence of dowry death being based on no evidence is not liable to sustain.

23.Learned counsel for the appellants has further submitted that fact witnesses, namely, P.W.-1 Ramkishan, father of the deceased and P.W.-2 Kamlesh Kumar, brother of the deceased have although said that after the marriage of deceased with appellant no. 1 Sunil Kumar Sharma, appellants raised additional demand of motor cycle from the deceased and also subjected deceased to harassment for the said demand which deceased told them when she visited their house, however, it is also proved from their evidence that marriage of deceased with appellant no. 1 Sunil Kumar Sharma was a very simple marriage in which neither there was any demand of dowry nor any dispute had arisen between boy and girl side over any such issues. Learned counsel has further submitted that according to their statements, appellants raised additional demand of motorcycle from the deceased after two years of her marriage and they raised this demand at the time of marriage of her middle sister also, however, they have no where said that deceased had been subjected to cruelty or harassment, physical or mental, for, or in connection with the said demand, they have simply said that appellants’ demanded subsisted and continued as a result deceased died. He has further submitted that by simply raising the additional demand of motorcycle by the appellants from the deceased the offence of dowry death would not be constituted, the offence would be constituted only when it is proved that soon before her death deceased had been subjected to cruelty or harassment for, or in connection with the demand of dowry of motorcycle.

24.Learned counsel for the appellants has further submitted that soon before death means immediately before death, not any time before death. He has submitted that since there is no evidence on record that deceased had ever been subjected to cruelty or harassment for the additional demand of motorcycle and there is also no evidence that her subjection to cruelty was soon before her death but, as per statements of the fact witnesses, simply a demand of motorcycle was raised from the deceased and that too after two years of her marriage and thereafter the said demand was raised at the time of marriage of her middle sister, which had taken place two years before her death, it could not be said under any stretch of imagination that deceased had been subjected to cruelty or harassment for the additional demand of motorcycle by the appellants soon before her death, and in that case the appellants cannot be held guilty for the offence of dowry death.

25.Learned counsel for the appellants has also submitted that learned court below has failed to consider the defence evidence which clearly says that deceased was not in fit state of mind rather she was suffering from mental disorder for which she had been taken to a sorcerer who had practiced Jhar-phoonk on her, but she did not get well and being fed up with the same, she ended her life. Learned court below has also failed to consider the evidence of defence D.W.-3 Shiboo, a child witness, who has said that appellants were not at their home when the incident took place rather they were at their field threshing wheat at that time and they had been informed about the deceased being caught with fire by him at the field, where after they came to their house and found that deceased was dead. He has submitted that there could be no occasion for a child witness telling lie to save the appellants, therefore, learned court should have believed his evidence and on account of that evidence it should not have held the appellants guilty of the offences charged.

26.In reply, the learned AGA has submitted that dowry death has been defined in sub-section (1) of section 304-B I.P.C. and it reads as under.

“Sub Section (1) of Section 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.”

27.Learned AGA has further submitted that section 113B Indian Evidence Act speaks about presumption as to dowry death and it reads as under:-

“113-B. 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).”

28.Thus, he has submitted that on combined reading of section 304-B I.P.C. and section 113-B of the Indian Evidence Act, it appears that a person can be said to have caused the offence of dowry death when it is established that the death of woman has taken place within 7 years of her marriage by burns or bodily injury or occurs otherwise than under normal circumstances 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 of dowry.

29.The learned AGA has further submitted that it is not disputed that deceased Sunita was married to appellant no. 1 Sushil Kumar Sharma on 19.04.2003 and she died of burns in her matrimonial home on 16.05.2009 that is within seven years of her marriage. Learned AGA has further submitted that it is also not disputed that appellant no. 2 Ram Babu Shram and appellant no. 3 Smt. Geeta Devi being father and mother of appellant no. 1 Sushil Kumar Sharma, they are the relatives of the husband of the deceased and it is also not disputed that deceased had a four years old daughter and a six months old son at the time of her death.

30.Learned AGA has further submitted that both fact witnesses have clearly said that appellants raised additional demand of motorcycle from the deceased after two years of her marriage which she told them when she visited their home and they also raised this demand at the time of marriage of her middle sister which had taken place two years before her death.

31.He has further submitted that it has come in the evidence of P.W.-1 Ram Krishan, father of the deceased that his son-in-law, appellant no. 1 Sushil Kumar Sharma and the deceased had come to his house on the eve of holi and then appellant no. 1 Sushil Kumar Sharma had made the additional demand of motorcycle which he had declined. Learned AGA has further submitted that it has also come in the evidence of P.W.-1 Ram Krishna that after declining the demand of appellant no. 1 he had gone to the house of appellants along with his brother-in-law and tried to convince them showing his inability to fulfill their demand. He has further submitted that even after this they did not stop pressing the demand but appellant no. 1 Sushil Kumar Sharma raised this demand again at the time of marriage of his second daughter which had taken place two years before the death of the deceased. Learned AGA has thus submitted that it is proved from the evidence of P.W.-1 and P.W.2 that appellants not only raised the additional demand of motor cycle from the deceased but they continued pressing the demand which ultimately resulted into death of the deceased. Learned AGA has further submitted that when it is proved from the evidence of fact witnesses that there was an additional demand of motorcycle by the appellants from the deceased and the demand did not stop even after deceased’s father having expressed his inability to fulfill the same being not financially sound and he had two more daughters to marry, and the demand continued and it was raised again at the time of marriage of middle sister of deceased also, appellants can not escape from the rigours of dowry death raising the question of lack of evidence that soon before death deceased was subjected to cruelty or harassment for, or in connection with the additional demand of motorcycle.

32.Learned AGA has further submitted that soon before death does not mean that subjection to cruelty or harassment should be immediately before the death of the woman. The submission of learned AGA is that if the demand of dowry is raised by husband or any relative of the husband of a woman and it continues and woman is subjected to cruelty, physical or mental, which becomes the cause of her death due to burns or bodily injury or death occures otherwise than under normal circumstances within seven years of her marriage, sub-section (1) of section 304B I.P.C. would be attached and the husband or any relative of the husband who subjected the woman to cruelty for, or in connection with the demand of dowry shall be presumed to be guilty of the offence of dowry death treating that soon before death woman was subjected to cruelty or harassment for, or in connection with demand of dowry.

33.Learned AGA has further submitted tha deceased Sunita having died within seven years of her marriage within her matrimonial home due to burns, appellant are obligated to explain how her death took place. His submission is that though the appellants have said in their statements under section 313 Cr.P.C. that they were not at home at the time of incident when deceased caught with fire, but they have not made clear how she was caught with fire, and if it were a case of suicide, the circumstances which led to take such extreme steps.

34.The submission of learned AGA is that in a case where a woman dies in her matrimonial home within seven years of her marriage other than under normal circumstances, the burden lies on boy side to explain why and how the death took place. Further submission is that in such a case the husband of the woman and relatives of the husband cannot keep silence saying burden is on prosecution to prove why and how the death took place. His further submission is that a woman having died in her matrimonial home in suspicious circumstances, the father and relatives of the father of the woman being away from the place of occurrence cannot throw light how the death took place. The husband and relative of husband of the woman being under obligation to explain the manner and cause of death, if they deliberately fail to explain the manner and cause of the death, an adverse presumption would be raised against them. His submission is that in the case in hand appellants have not come with any specific case how the incident took place and why. Their submission in this regard is that they were not at home when the incident took place rather they were at their field threshing wheat. They have not said a single word how deceased caught with fire, how far is their field from their home, when they reached the home after receiving news of incident, who came to spot immediately after the incident and what steps were taken to save the victim from the fire. They have not explained why deceased having two children aged 4 years and 6 months took such extreme step as any prudent woman having small kids of such age would not end her life without any extreme reason. They have also not explained why did they not take deceased to a doctor for her treatment if she had any mental disorder and why she was taken to a sorcerer for practicing Jhar-phook upon her. The submission of learned AGA is that appellants having failed to explain the aforesaid facts and circumstances, it would be presumed that they are deliberately concealing the cause behind the death of deceased.

35.Learned AGA has further submitted that a cane of kerosene oil has been recovered from the place of occurrence which appellants have failed to explain as to who brought the kerosene oil, when it was brought and for what. His submission is that recovery of can of kerosene oil from the place of occurrence raises serious doubt about the plea taken by the appellants that they were not at home at the time when the incident took place rather they were at their field threshing wheat.

36.His further submission is that it is established from the evidence of P.W.-1 Ram Krishna and P.W.-2 Kamlesh Kumar that there was an additional demand of motorcycle by the appellants from the deceased and they were pressing this demand as it was not raised only once but it was raised at the time of marriage of middle sister of the deceased also, and it subsisted and continued which deceased used to tell to her father and other family members of her father’s home, during her visits, and it is also established from the evidence that death of deceased took place in her matrimonial home within seven years of her marriage due to burns which appellants have failed to explain as to how deceased sustained the burn injuries and in view of this, appellants cannot escape liability of dowry death saying prosecution has failed to prove that soon before death deceased was subjected to cruelty or harassment by the appellants for, or in connection with any demand of dowry.

37.His further submission is that all five ingredients necessary to constitute the offence of dowry death being present in the case in hand, finding returned by the learned court below holding appellants guilty for the offence of dowry death cannot be said to be based on no evidence and appellants cannot be allowed to be let off the charges.

38.Learned AGA has also submitted that appellants cannot be given the benefit of defence evidence as it appears to have been procured to save the appellants. The evidence of D.W-1 Deen Mohammad that deceased had mental disorder and being fed up with the same she wanted ending her life is not reliable as there is no medical evidence to this effect on the record. Similarly, the evidence of D.W.-2 Brijesh is also not reliable as he while having claimed to be a tenant in the house of the appellants could not tell how the death of deceased took place and he could not give any proof of being tenant. He has submitted that it is surprising that a tenant living in the same house in which deceased resided did not know the cause of death while deceased died in the same house. Therefore, his evidence is also not reliable. So far as the evidence of D.W.-3 Shiboo is concerned, his evidence also does not appear to be reliable as he never said this thing before that appellants were not at their home at the time of incident but they were at field and he after having come to know about deceased being caught with fire rushed to them and told them about the incident.

39.Having heard the submissions of learned counsel of both sides and having gone through the evidence on record, it is established that deceased Smt. Sunita was the wife of appellant no. 1 Sushil Kumar Sharma and daughter-in-law of appellant no. 2 Ram Babu Sharma and appellant no. 3 Smt. Geeta Devi. It is also established that her marriage with appellant no. 1 was solemnized according to Hindu rites on 19.04.2003 and from their wedlock two children were born, a daughter and a son who were 4 years and 6 months old at the time of her death. It is also established that father of the deceased was a class-IV employee posted at Bareilly when the marriage of deceased with appellant no. 1 was solemnized in the year 2003 and she died in her matrimonial home in the year 2009. It is also established that death of deceased took place in her matrimonial home within seven years of her marriage and it was other wise other than under normal circumstances as she died of burns. When from the facts and circumstances and the evidence it is established that deceased died within seven years of marriage in her matrimonial home due to burns, the only thing required to be seen to constitute the offence of dowry death is whether or not, soon before her death, she was subjected to cruelty or harassment by the appellants for, or in connection with any demand for dowry. If this is established that deceased Sunita was subjected to cruelty or harassment by the appellants soon before her death for, or in connection with any demand of dowry, the appellants would be presumed to be guilty of the offence of dowry death.

40.On a careful reading of evidence of P.W.-1 Ram Krishna and P.W.-2 Kamlesh Kumar, it is also established that though the marriage of deceased Sunita with appellant no. 1 Sushil Kumar Sharma was a simple marriage, but it has come in evidence that appellants had raised the additional demand of motorcycle from the deceased after two years of her marriage and they continued pressing this demand. It has also come in the evidence of fact witnesses that when applicant no. 1 Sushil Kumar Sharma with his wife Smt. Sunita visited the father’s home of his wife on the eve of holi, he again raised the demand of motorcycle before the father of deceased which deceased’s father declined due to his financial hardship. It has also come in the evidence that thereafter father of the deceased Sunita went to the matrimonial home of the deceased along with his brother-in-law and tried to convince the appellants about his inability to fulfill the demand but the appellants did not leave the demand rather they continued it, as when appellant no. 1 along with his wife visited his father’s home of his wife at the time of marriage of middle sister of his wife he again raised the demand of motorcycle. It has also come in the evidence that deceased Sunita used to tell her father and other family members of her parental home about the additional demand of appellants during her visits to her parental home. It also appears from the evidence of fact witnesses that deceased was subjected to cruelty for the demand of motorcycle. Cruelty does not mean physical cruelty, it may be mental or even psychological. There could be many ways to harass a woman for the demand of dowry, such as by passing comments, taunts and repeating the demand time and again. Since, appellants did not only raise the additional demand of motorcycle from the deceased but they continued pressing the demand also which deceased told to her father and other family members on visiting her matrimonial home and she was subjected to cruelty or harassment for the said demand, it would be inferred that, soon before death, deceased was subjected to cruelty for, or in connection with the demand of dowry.

41.Soon before death does not connote that subjection of cruelty should be immediate. If woman is regularly reminded with the demand of dowry or she is regularly taunted for the demand, this is also a kind of harassment and would be covered under soon before death. Harassment is such a thing which is not always visible, it may be felt or realized also. Thus, so far as the condition whether soon before the death deceased was subjected to cruelty or harassment by the appellants for, or in connection with any demand of dowry is concerned, it is also fulfilled and therefore the appellants shall be presumed to have committed the dowry death because other four conditions are already fulfilled.

42.We find much force in the submissions of learned AGA that appellants having failed to explain why and how deceased was done to death, it also heavily goes against them. If the deceased has died within seven years of marriage within the house of the appellants, they are expected to come out with specific case how she died and why. Appellants obligation to explain the cause and manner of deceased’s death is not only social and moral but it is legal also as they are the best persons who could throw light on it. Their explanation that deceased was suffering from mental disorder for which she used to be taken to D.W.-1 Deen Mohammad, a sorcerer for practicing Jhar-phook upon her is a lame explanation which we are unable to accept. It is unbelievable that a woman suffering with mental disorder instead of being taken to a doctor would be taken to a sorcerer for treatment. We also feel that if deceased had mental disorder she would have been taken to a doctor for her treatment and in that case medical prescriptions would be filed. There being no such evidence, we are unable to believe the evidence given by D.W.1 Deen Mohammad that deceased had mental disorder and she used to be taken to him for practicing Jhar-phook and despite Jhar-phook being practiced she was not cured and being fed up with illness she ended her life.

43.Similarly, we also feel that D.W.-2 Brijesh being a yes man of the appellants, his evidence has been procured in order to save the appellants from the rigours of the offence of dowry death. How a person could be ignorant about the cause of death of daughter in law of his land lord having taken place in the same house in which he claims to been residing as tenant at the time of death. The ignorance of this witness about the cause of death of deceased makes him unreliable therefore, we are unable to believe his evidence also. As far as D.W.-3 Shiboo is concerned, he also not having told before that appellants were at their field threshing wheat at the time of incident, we do not see any truth in his evidence also.

44.The conduct of the appellants not saying a single word how the deceased caught fire also heavily goes against them. They have not come with a specific case whether deceased committed suicide or she caught the fire accidentally. They have also not explained how kerosene oil was present in their home and for what purposes. Recovery of can of kerosine oil from the place of occurrence by the Investigating Officer makes sure the availability of kerosene oil in the house of the appellants at the time of incident. Appellants should have explained why Kerosene oil was brought to their home. Appellants having failed to explain how kerosene came to their home, this goes against appellants to draw adverse inference against them.

45.It is very surprising that deceased who was the mother of two children aged four years and six months would commit suicide without any serious reason. The contention of appellants that they were at their field threshing wheat at the time of incident and they came to know about the incident by D.W.-3 Shiboo where after they immediately came to their home and found that deceased was died is unbelievable, as they have not said a single word how the deceased caught with fire, who came to spot when she caught the fire and what efforts were made to save her. These unanswered questions heavily go against appellants and make us believe that death of deceased was not accidental, there was some other reason behind it. Any ways, appellants being obligated to explain the cause and manner of death of the deceased and they having failed to explain the same, presumptions would be raised against them and deceased having died due to burns in her matrimonial home within seven years of marriage and there being evidence that a motor cycle was being demanded from her and soon before her death she had been subjected to cruelty for that demand, appellants would be held guilty for having committed the offence of dowry death. We, therefore, fully agree with the finding of conviction recorded by the learned court below holding appellants guilty for the offences under sections 498A, 304B I.P.C. and ¾ Dowry Prohibition Act, therefore, finding of conviction is affirmed.

46.On reading the judgement of learned court below it appears that while appellants being held guilty for the offences under sections 498A, 304B I.P.C., they have been sentenced separately for the above offences. However, ingredients constituting the offence of cruelty under section 498A I.P.C. being also present in the offence of dowry death under section 304B I.P.C., there is no justification sentencing appellants separately for both the offence. The purpose to achieve ends of justice may be served sentencing appellants under section 304B I.P.C. only.

47.It has been argued by learned counsel for the appellants that in view of the fact that appellant no. 2 Ram Babu Sharma and appellant no. 3 Smt. Geeta Devi were 65 years and 60 years old in the year 2011 when they were convicted and now they are 71 years and 67 years old respectively, the punishment of 10 years rigorous imprisonment provided to them for the offence of dowry death is too harsh. The submission of learned counsel is that looking to their old age, their sentence should be reduced to minimum 7 years as provided under sub-section (2) of section 304 B I.P.C.

48.Similarly, learned counsel for the appellants also argued that appellant no. 1 Sushil Kumar Sharma being father of two growing children aged twelve years and eight and half years and he being the only one to take care of them, punishment of life imprisonment provided to him for the offence of dowry death is also too harsh and it should also be reduced to a reasonable extent so that he may be able to look after his children after being set free.

49.We have thoroughly considered the aforesaid submissions of learned counsel for the appellants and we feel that looking to old age of appellant no. 2 Ram Babu Sharma and appellant no. 3 Smt. Geeta Devi and also looking the fact that children of appellant no. 1 are of growing age, presently 12 and 8 years old, and in absence of their mother they need to be looked after by their father, the appellant no. 1, we feel it expedient in the interest of justice that punishment provided to them for the offence of dowry death is too harsh and needs to be suitably reduced. We also feel that instead of life imprisonment, rigorous imprisonment of 10 years to appellant no. 1 Sushil Kumar Sharma and, similarly, instead of 10 years rigorous imprisonment, imprisonment of 7 years to appellant no. 2 Ram Babu Sharma and appellant no. 3 Smt. Geeta Devi would be sufficient to serve the ends of justice for the offence of dowry death under section 304 I.P.C.

50. Accordingly, while maintaining the order of conviction of the appellants for the offences under sections 498A, 304B I.P.C. and section ¾ D.P. Act, we set aside the punishment Provided to the appellants for the offence under Section 498-A I.P.C. and direct that instead of serving punishment of life imprisonment for the offence of dowry death under Section 304 IPC, appellant no. 1-Sushil Kumar Sharma would serve rigorous imprisonment of 10 years besides paying fine Rs.15,000/- and, similarly, appellant no. 2 Ram Babu Sharma and appellant no. 3 Smt. Geeta Devi each, instead of serving ten years rigorous imprisonment for this offence would serve the punishment of rigorous imprisonment of seven years besides paying Rs.15,000/- fine. There would be no change in the punishment awarded to appellants under Section 3/4 D.P. Act and in stipulation clause which provides that sentences of appellants shall run concurrently.

51.Appellant no. 1 Sushil Kumar Sharma is already in jail and he shall remain there to serve out the remaining modified punishment.

52.Appellant no. 2 Ram Babu Sharma and appellant no. 3 Smt. Geeta Devi are on bail. Their bail is cancelled and sureties are discharged and they are directed to surrender before the court below within three weeks from today to serve out the remaining modified punishment awarded to them failing which, the court below shall take all necessary steps to get them arrested and lodged into jail in compliance of judgment of this Court.

53.The Registrar General of this Court is directed to immediately send certified copy of the judgment to the concerned Sessions Judge for necessary action.

(Umesh Chandra Srivastava, J.) (Ramesh Sinha, J.)

Order Date :- 10.08.2017

Bhanu