JUDGMENT 1. 1. By filing instant criminal appeal under Section 374 Criminal Procedure Code, the accused appellant has challenged the judgment of conviction and sentence dated 31.7.2002 passed by learned Additional Sessions Judge (Fast Track) Jhunjhunu (for short the 'learned trial Court') in Sessions Case No. 65/2001 (157/1998), whereby it convicted and sentenced the accused appellant as under : U/s. 304-B Indian Penal Code : 10 years Rigorous Imprisonment and a fine of Rs. 2,000/-. In default of payment of fine, the accused appellant shall further undergo two months' simple imprisonment. U/s. 498-A Indian Penal Code : Three years Rigorous Imprisonment and a fine of Rs. 500/-. In default of payment of fine, accused appellant shall further undergo 15 days' simple imprisonment. 2. Both the sentences were ordered to run concurrently. 3. Brief facts of the case are that one Dayanand lodged a report (Ex.P1) before Station House Officer, Pilani to this effect that his daughter Sunita was married to accused appellant on 17.6.1993. He had given adequate dowry, as per his status. After marriage, her daughter was pestered for dowry. He and his family members tried to intervene and settle the dispute but the accused appellant did not see reason and continued perpetrating cruelty on her daughter. He further stated that her daughter gave a call to him three months back and after call he went to meet her. He found the daughter to have suffered some injuries on account of beating. It was then stated that he again endeavored to sort out things between the in-laws and his daughter but the appellant stated that he would continue assaulting his daughter till he gets the entire dowry demanded. He further stated that at about 1:00 PM on 7.7.1998 Vikram Singh came to the village of him and informed latter that Sunita had consumed some poisonous material and is admitted at Pilani Hospital. He went to the hospital where he did not fine his daughter. It was further alleged by him that he received information from the Police Station and went on the spot where he found his daughter lying near the well and also found some marks of violence on her neck, prior to her death. He went to the hospital where he did not fine his daughter. It was further alleged by him that he received information from the Police Station and went on the spot where he found his daughter lying near the well and also found some marks of violence on her neck, prior to her death. It was also stated that one of the heavy stones on the well had been removed, which reflected that his daughter had been killed by the appellant and his family members namely; Vikram Singh, Jogendra Singha Kuldeep Singh and Prashant and thrown in the well. He lastly stated that Sher Singh, Karan Singh, Amar Singh, Dani Ram, Gulari, Man Singh, Mahendra Singh and Radhey Shyam had visited the place of incident with him and saw the injuries on the deceased as also the stone removed from the well. 4. The police after investigation submitted challan against the accused appellant for the aforesaid offences. 5. The learned trial court framed the charges against the accused appellant. He pleaded not guilty and claimed to be tried in the matter. 6. The prosecution in support of its case produced as many as 17 witnesses and certain documents were exhibited. Thereafter the statement of the accused appellant under section 313 Criminal Procedure Code was recorded. 7. The learned trial Court after hearing both the parties convicted and sentenced the accused appellant vide judgment 31.7.2002 as mentioned above. The accused appellant being aggrieved with the impugned Judgment of conviction and sentence has preferred the instant criminal appeal. 8. Mr. Dixit, learned counsel for the accused appellant made an oral request before this Court he is not challenging the conviction of the accused appellant but also prayed for reduction of sentence of the accused appellant. 9. Learned counsel that there is great contradictions, omissions and improvements in the statements of the prosecution witnesses. Testimony of the prosecution witnesses suffer from numerous incongruence's and embellishments rendering the same to be highly dubious. Site plan of the impugned place of incident does not render corroboration to the ocular testimony. The medical evidence stands in conflict with the ocular evidence. As per the FIR lodged by the father of the deceased, he had come out with the version of alleged murder of the deceased at the hands of the appellant and few others. Site plan of the impugned place of incident does not render corroboration to the ocular testimony. The medical evidence stands in conflict with the ocular evidence. As per the FIR lodged by the father of the deceased, he had come out with the version of alleged murder of the deceased at the hands of the appellant and few others. However, the said version did not find favour with' the Investigating Agency and charge-sheet was filed only against the appellant under Section 304B Indian Penal Code. 10. During the course of arguments, learned counsel also drawn attention of the Court towards the fact that the accused appellant is a young person, he is having three children and all are dependent upon him and his father is in old age. Thus, he prays before this Court to release the petitioner only on the undergone period. 11. Per contra, Mr. B.N. Sandhu, learned counsel for the Public Prosecutor controverted the aforesaid facts and submitted that the learned trial Court passed the impugned Judgment after considering the statements of the prosecution witnesses. 12. Learned PP placed reliance upon a Judgment of (1) Thakkan Jha & others Vs. State of Bihar, reported in (2004) 13 SCC 348 , wherein in para 6 Hon'ble Apex Court has relied upon a case of (2) Kans Raj Vs. State of Punjab, reported in (2000) 5 SCC 207 : 2000 SCC (Cri) 935 , in which a three-Judge Bench of Hon'ble Apex Court dealt with the presumption available in terms of Section 113B of the Evidence Act, 1872 (in short "the Evidence Act") and its effect on finding persons guilty in terms of Section 304B Indian Penal Code. It was noted as follows : (SCC p. 217 Para 9) "9. It was noted as follows : (SCC p. 217 Para 9) "9. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304-B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that : (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; and (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected soon before her death." 7. No presumption under Section 113B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence or cruelty or harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and too stale before the date of death of the victim. This is so because the expression used in the relevant provision is "soon before". The expression is a relative term which is required to be considered under specific circumstances of each each case and no straitjacket formula can be laid down by fixing any time limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term "immediately before". This is because of what is stated in Section 114 Illustration (a) of the Evidence Act. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term "immediately before". This is because of what is stated in Section 114 Illustration (a) of the Evidence Act. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence existence of a proximate and live link." 13. I have heard learned counsel for the accused appellant as well as learned PP for the State and carefully gone through the entire material made available to me including the Judgment cited by the learned PP for the State. 14. Taking into consideration entire facts and circumstances of the case, I am of the opinion that the ends of justice would be met if the sentence awarded to the accused appellant Kuldeep is reduced to 9 (nine) years from 10 (ten) years. 15. In the result, the appeal is partly allowed and the sentence awarded to the accused appellant Kuldeep is reduced to 9 (nine) years from 10 (ten) years so far as Section 304-B is concerned. So far as imposition of fine on the accused appellant under Section 304B Indian Penal Code is concerned, it is waived as there is no provision in this Section to impose a fine upon the accused appellant. 16. The impugned Judgment of the trial Judge shall stand modified as indicated above.Appeal partly allowed. *******