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2010 DIGILAW 125 (RAJ)

Anurag Sharma v. State of Rajasthan

2010-01-15

VINEET KOTHARI

body2010
JUDGMENT Hon'ble KOTHARI, J.-This appeal has been filed by Anurag Sharma son of Shyam Lal Sharma and Smt. Kanta w/o Shri Shyam Lal Sharma, husband and mother-in-law respectively of the deceased Satyabhama being aggrieved by the judgment dated 31.1.2004 passed by the learned Sessions Judge, Alwar convicting the accused appellants under Section 498-A and 304-B IPC in sessions case No. 12/2003. 2. The brief facts of the case are that the complainant Nawal Kishore lodged a written report at Police Station Mahila Thana, Alwar on 16.1.2002. In the report, it was alleged that his daughter Satyabhama was married to appellant Anurag Sharma, about one and half year back. Ever since then the girl was being pestered by her mother-in-law Smt. Kanta, husband Anurag and father-in-law Shyam Lal. It was further stated in the report that his daughter had only twice visited Bandikui, after her marriage, in spite of their repeated requests to send her to Bandikui, to her in-laws. It was also alleged that whenever informant's daughter Satyabhama used to make telephone calls at her parental house, from her marital house, her mother-in-law used to stand by her side, on account of which Satyabhama use to be terrified. Whenever Satyabhama's mother-in-law would go out of house to pay visit to the temple, Satyabhama would make telephone calls to her parents and would cry on phone and complain about the ill-remarks made by her parents-in-law and husband that she was ugly & dark complexioned and was also of poor family background. The account would also pass comments to the effect that nothing was given in the marriage, they would abuse her and on number of occasions tried to kill her. It was further alleged that many months prior to the impugned incident, the accused persons had belaboured her and informant's daughter had called-up her parents at Bandikui. After receiving the phone call, the informant and his family members had visited Alwar and spoke to the accused persons. It was further alleged in the report that accused-appellants had apologised for their behaviour. The informant had asked to take his daughter to Bandikui, upon which the accused persons had said that they would send her later. It was also alleged in the report that in marriage, the information had given Rs. 1 lac cash, gold chain, gold and silver rings, house-hold furniture to the accused persons. He had spend about Rs. The informant had asked to take his daughter to Bandikui, upon which the accused persons had said that they would send her later. It was also alleged in the report that in marriage, the information had given Rs. 1 lac cash, gold chain, gold and silver rings, house-hold furniture to the accused persons. He had spend about Rs. 4 lacs in the marriage. It was then stated that in the night he had received a telephone call at Bandikui from her brother-in-law Om Prakash that Satyabhama had died. Informant further alleged in his report that the accused persons were demanding a Motor-Cycle as also Rs. 2 lacs cash. Upon receiving the news of his daughter's death, informant went to Alwar, at her daughter's in-law's house, where he found the dead body of Satyabhama, which had ligature marks on her neck, as also other injuries. It was lastly stated in the report that the accused-appellants as also the father-in-law of the deceased had done her to death by strangulating her, for want of dowry. 3. On the basis of the above noted report, an FIR was registered at Police Station Mahila Thana, Alwar for offences alleged under Sections 304-B and 498-A IPC. 4. After investigation, charge sheet was filed against the accused appellants as also father-in-law of the deceased Shri Shyam Lal for the offence under Sections 302 read with 34, 304-B, 498-A IPC and trial was held against the accused appellants and the said father-in-law. 5. During trial, the prosecution examined 14 witnesses and got 38 documents exhibited. In explanation under Section 313 Cr.P.C. the accused appellants pleaded false implication and in written statements further stated that deceased was never subjected to any ill-treatment and there was no demand of money or motor cycle. It was also stated that deceased was unable to conceive and on account of that frustrations and depression, she committed suicide. 6. In defence, three witnesses were examined and 21 documents were got exhibited. 7. After trial the learned trial Court while acquitting the co-accused Shyam Lal- father-in-law of the charges and also acquitting the accused appellants from the charge under Section 302 read with 34 IPC convicted the present accused appellants under Section 498-A and 304-B IPC and awarded sentence of ten years R.I. under Section 304-B and one and a half years R.I. under Section 498-A IPC and fine of Rs. 500/- each and in default of payment of fine to further undergo three months S.I. Both the sentences were directed to run concurrently. 8. Mr. S.R Bajwa, learned counsel appearing for the appellants urged that the death of deceased Satyabhama though occurring within one and a half years of marriage, which took place on 7.5.2001 and death took place on 15.12.2002 was a suicide committed by her for not able to conceive and the husband Anurag Sharma- the appellant was taking her for medical treatment about one month prior to the said death. He submitted that the offence under Section 304 B IPC is not made out against the appellant in the present case as cruelty & harassment and dowry demand as alleged cannot be said to be made soon before the death as even according to the statement of complainant before the Court the said demand was made only about six months prior to the death of Satyabhama. 9. He candidly submitted that no straitjacket formula or fixed period has been prescribed by the Legislature while interpreting the term, 'soon before the death' used in Section 304-B IPC, yet, the words' soon before' have to be decided on proximity text and the alleged cruelty should be the immediate cause of the unnatural death of a woman within seven years of marriage in order to apply Section 304 IPC. Since from the evidence on record, no such cruelty or harassment is proved within six months from the date of death occurring on 15.12.2002, the accused appellants deserve to be acquitted from the charges under Sec. 304-B IPC. While submitting that offence under Section 498-A IPC is also not made out, he drew the attention of the Court towards the documents Ex.D/15 and D/16, which indicate that deceased Satyabhama was examined in City Hospital, Alwar by Dr. Richa Gupta, M.S., who was also examined by the Court as DW-3 and also the accused appellant Anurag Sharma was examined by said Doctor on 1.12.2002, whose semen analysis indicated against the heading 'Total Counts' that it was Oligospermia, which according to medical dictionary means deficiency of spermatozoa in the semen. Ex.D/14 and Ex. D/15 indicated that deceased Satyabhama was also prescribed some medicines and prescription was given as patient wanted issue. 10. Ex.D/14 and Ex. D/15 indicated that deceased Satyabhama was also prescribed some medicines and prescription was given as patient wanted issue. 10. Learned counsel for the appellants, therefore, submitted that these medical reports which were about 15 days prior to the said death indicates that perhaps on account of non-conception of any child, the deceased had become frustrated and had committed suicide. Learned counsel for the appellants referred to the statements of PW.1 Nawal Kishore Panda- father of the deceased Satyabhama, who in his statement recorded by the learned trial Court on 10.2.2003 stated that at the time of marriage he gave Rs. 1 lac cash and gold chain, gold and silver rings, suit for father and son and house-hold furniture to the accused persons as per their desire. After marriage his daughter had come to his house only twice and on telephone she used to cry and said that her mother-in-law insist for sending gifts like sarees and sweets in large quantity and good quality and she also said that when her father had given motor cycle to his elder son-in-law, whereas, nothing was given to her and, therefore, she should bring Rs. 2 lacs cash and a motor cycle. The said PW.1 Nawal Kishore has also stated in his statements that about six months prior to the death, his daughter had given all these details to him on phone and thereupon he along with his brother and wife had gone to Alwar to the residence of accused appellants as they had beaten his daughter and they wanted to take her back to their home but the accused appellants apologized and assured them that such thing will not be repeated in future and also said that since father of the accused appellant Shyam Lal was suffering from heart disease and was away from the town, upon his return they would ask him and send their daughter to their residence and upon such assurance, they left behind Satyabhama at her in-law's house. After one month of the said incident, the deceased Satyabhama again called them up and said that her mother-in-law continued to harass her in the same manner for further dowry. After one month of the said incident, the deceased Satyabhama again called them up and said that her mother-in-law continued to harass her in the same manner for further dowry. The said witness has also stated that after about 15 days, he again talked to the accused Shyam Lal and informed him about the grievance of his daughter but the said Shyam Lal told him that he along with other family members had committed a wrong by coming to his residence at Alwar but he also assured that no such complaints would come from his daughter again. 11. PW.2 Vishnu Prasad- brother of Nawal Kishore and uncle of deceased Satyabhama also stated before the Court that twice after her marriage when deceased Satyabhama came to Bandikui, she appeared to be very lean and thin and upon enquiry she told him that her in-laws were harassing her for dowry. He also reiterated before the Court that accused persons were demanding dowry of Rs. 2 lacs cash and a motor cycle and were constantly pestering her for same and on account of not giving of such further dowry had killed her. 12. PW.3 - Kajodmal, neighbour of Nawal Kishore also stated before the Court that he had participated in the marriage of deceased Satyabhama and after marriage when he met her at Bandikui at her father's place, while passing by he generally enquired from her why she appeared so lean and thin, she stated that her in-laws were continuously demanding dowry from her and, therefore, she was very unhappy there. 13. Similarly other neighbour PW.4 - Madan Lal also stated that father of Satyabhama, Nawal Kishore, had informed him that Satyabhama is not happy in her' Sasural' and they being poor persons could not give so much of dowry. 14. PW.6- Ram Babu, younger brother of Nawal Kishore and uncle of deceased Satyabhama stated before the court in his cross examination that after' 2-3 months of her marriage Satyabhama had started complaining about the conduct of her mother-in-law, father-in-law and husband and about three months prior to her death she had come to Bandikui for attending the marriage of daughter of Bhawani Prasad and at that time also she reiterated that her in-laws were pestering her for more dowry. 15. PW. 15. PW. 7 - Prem Lal, mother of deceased Satyabhama also stated before the Court that after her marriage on 7.5.2001, her daughter had come to her residence at Bandikui twice and her in-laws were demanding Rs. 2 lacs cash and a motor cycle and they constantly kept her harassing for the same and also insulted her on various occasions describing her to be ugly and they also did not give her proper food and only one' Roti' was given to her after 4.00 pm in the evening and whenever she used to talk to her on telephone, her mother-in-law would constantly stand besides her and ask for so and so goods on the ensuing festivals and she also threatened her to' kill her if such goods were not given by her parents. 16. PW. 8 Suman, sister of deceased Satyabhama also stated that when Satyabhama had come to Bandikui on marriage of her cousin she hugged her and cried and appeared to be very weak and upon inquiry she told her that even though her parents had given more dowry as compared to her elder sister, her in-laws were harassing her for more and more dowry. She stated that accused appellant Anurag was doing the business of Courier Service and she did not know about his income. 17. PW.12 Dr. Phool Singh Choudhary, who conducted post mortem of deceased Satyabhama, has stated in his report as well as statement that there were as many as five injuries on the body of deceased Satyabhama like bruises on her lower lip, swollen nose and bruises on her. breast and one ligature mark on the neck of 39 cm x 1-1/4 cm and cause of death was stated to be Asphyxia, which was sufficient in the ordinary course to cause death. In his cross examination also, the said Doctor Phool Singh 'Choudhary has stated that Asphyxia could be caused by hanging, drowning and even by strangulation. 18. Mr. breast and one ligature mark on the neck of 39 cm x 1-1/4 cm and cause of death was stated to be Asphyxia, which was sufficient in the ordinary course to cause death. In his cross examination also, the said Doctor Phool Singh 'Choudhary has stated that Asphyxia could be caused by hanging, drowning and even by strangulation. 18. Mr. S.R. Bajwa, learned counsel appearing for the accused appellants also submitted that in explanation under Section 313 Cr.P.C. the question put to the accused appellants was only with respect to alleged harassment for dowry about six months prior to her death, which was also denied and, therefore, the prosecution could not establish that such demands for dowry continued upto her death in unnatural circumstances and, therefore, the ingredients of Section 304 B IPC that such dowry demand should be made soon before the death is not at all satisfied in the present case. He, therefore, prayed for acquittal of the accused appellants under Section 304-B IPC and submitted in alternative that at the most the accused appellants could be held guilty for the offence under Section 498-A IPC for which the maximum punishment prescribed is three years, which has already been undergone by the accused appellants as the accused appellants have already suffered sentence of seven years and ten months by now. 19. On the other hand, Mr. Pradeep Shrimal, Public Prosecutor and Mr. N.K. Joshi for the complainant vehemently submitted that the death of Satyabhama had occurred within one and a half years of marriage and the in-laws of the deceased were constantly pestering her for dowry demands and that only resulted in the unnatural death of Satyabhama and, therefore, the presumption under Section 113-B of the Evidence Act read with Section 304 B of IPC could be drawn in the present facts and the prosecution had also established beyond reasonable doubt that the accused appellants were constantly and continuously harassing her for dowry demand of Rs. 2 lacs cash and a motor cycle and had also caused her death in the residential house of the accused appellants at Alwar. 20. 2 lacs cash and a motor cycle and had also caused her death in the residential house of the accused appellants at Alwar. 20. Learned counsel also submitted that it was surprising that though Alwar and Bandikui are only 50 kms away, the deceased Satyabhama had visited only twice to her parents house in a period of one and a half years and whenever she talked to her mother at Bandikui on telephone, her mother-in-law kept standing beside her and she ever did not allow her to talk freely on telephone and also repeatedly asked her to convey the demands to her parents. About non-conception of any child by deceased Satyabhama, learned counsel submitted that frustration could only add to her misery and death in unnatural circumstances at the place of in-laws when she was constantly being harassed for more and more dowry, therefore, it was a fit case for upholding the conviction under Section 304-B and also 498-A IPC and the sentence awarded by the learned trial Court deserve to be maintained. 21. Learned Public Prosecutor Shri Pradeep Shrimal and learned counsel Mr. N.K. Joshi appearing for the complainant relied upon the following decisions of Supreme Court in support of their submissions: (i) Dhian Singh & and. vs. State of Punjab- (2004) 7 SCC 759 , "The evidence shows that the. first appellant had demanded dowry and he had sent her away from his house and only after mediation she was taken back to the appellant's house and death happened within a period of two months thereafter. These facts clearly show that the suicide was the result of the harassment or cruelty meted out to the deceased. The presumption under Section 113-B of the Indian Evidence Act could be invoked against the appellant and the Sessions Court rightly found the appellant guilty of the offence punishable under Section 304-B IPC and Section 201 IPC." (ii) Yashoda & Am. vs. State of M.P. - (2004) 3 SCC 98 , in which the Hon'ble Supreme Court has held as under:- "18. In the instant case as well there is nothing to show that the demand had been given up or had been satisfied by the parents of the deceased. vs. State of M.P. - (2004) 3 SCC 98 , in which the Hon'ble Supreme Court has held as under:- "18. In the instant case as well there is nothing to show that the demand had been given up or had been satisfied by the parents of the deceased. On the contrary there is evidence to prove that even 15 days before the occurrence such a demand was reiterated and while leaving for her matrimonial home the deceased had wept and told her uncle that if the demand was not met, they will not let her live. The facts of this case are similar to the facts in the case of Kans Raj. In our view the same principle must apply. There is clear evidence on record that the demand for gold ornaments persisted and so did harassment and cruelty meted out to the deceased. Every time she came to her parents she wept and narrated her miserable plight. The last demand was made only fifteen days before her death. In these circumstances it cannot be said that there is no evidence on record to support the finding that soon before her death she was subjected to cruelty and harassment by the appellants and her husband in connection with demand of dowry." (iii) Ganesh Lal vs. State of Rajasthan (2002) 1 SCC 731 , in which the Hon'ble Supreme Court has held that:- " ..... Ordinarily the purpose of Section 313 of the Code of Criminal Procedure is to afford the accused an opportunity of offering an explanation of incriminating circumstances appearing in prosecution evidence against him. It is not necessary for the accused to speak and explain. However, when the case rests on circumstantial evidence the failure of the accused to offer any satisfactory explanation for his possession of the stolen property though not an incriminating circumstances by itself would yet enable an inference being raised against him because the fact being in the exclusive knowledge of the accused it was for him to have offered an explanation which he failed to do." (iv) Vidhya Devi & Am. vs. State of Haryana - (2004) 9 SCC 476 = RLW 2004(1) SC 86, in which the Hon'ble Supreme Court has held that:- "6. vs. State of Haryana - (2004) 9 SCC 476 = RLW 2004(1) SC 86, in which the Hon'ble Supreme Court has held that:- "6. So far as the contention raised on the scope and applicability of Section 304-B IPC to the case on hand and as to the facts found established are concerned, it may be seen that Section 304-B IPC was mainly introduced having regard to the increasing menace of dowry deaths by burns and bodily injury or otherwise than under normal circumstances and the insufficiency of the existing provisions of law to combat them effectively and also with the laudable object of curbing the menace of dowry deaths with a firm hand. In order to attract Section 304-B IPC the court must be satisfied that: (i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of her marriage; (iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by the relatives of her husband; (iv) such cruelty or harassment is shown to have been meted out to the woman soon before her death meaning thereby the proximity in point of time and not too remote or stale in point of time and relevance. The legislature has also taken care to enact a statutory presumption as to dowry death by inserting Section 113-B to the Indian Evidence Act, 1872 the extent that when the question is whether a person has committee. 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. The material on record in this case amply prove, as noticed supra, that soon before her unnatural death, which took place within seven years of her marriage, she was subjected to cruelty and harassment both for and in connection with a demand for dowry and that the facts brought on record further prove the existence of a proximate and live link between the effect of cruelty related to dowry demand and the death concerned. The expression "soon before" is a relative term which requires to be construed in the context of specific circumstances of each case and no hard-and-fast rule of any universal application can be laid down by fixing any time-limit." 22. I have heard learned counsels at length and perused the record of the case and also gone through the evidence on record. 23. The question which comes up for consideration before this Court is as to what is the meaning of words, "Soon before her death" used in Section 301 B of IPC. It would be of interest to refer to the latest decision of Supreme Court in the case of Suresh Kumar Singh vs. State of Uttar Pradesh- 2009 CLL.K (SC) 552 in which earlier decisions on this issue were also discussed by the Supreme Court. Para 18 to 22 of the said judgment including the extent of earlier judgments is quoted below:- "18. It is in the aforementioned context, we may consider the effect of the term "soon before death." Section 301B of the Code provides for a penal offence. It has the following ingredients: (i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) Such death must have occurred within seven years from the date of the marriage. (iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (iv) Such cruelty or harassment must be in connection with the demand of dowry. 19. The harassment which is said to have been caused in connection with the demand of dowry other than the incident in question, as notice hereinbefore, was one year prior to the incident. Would a gap of one year would answer the description of term "soon before her death" is the question. We may, at the outset, notice some case laws operating in the field. In Satvir Singh and Ors. vs. State of Punjab and Am. (2001) 8 SCC 633 ), this Court held: "22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry' at some time, if Section 304-B is to be invoked. In Satvir Singh and Ors. vs. State of Punjab and Am. (2001) 8 SCC 633 ), this Court held: "22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry' at some time, if Section 304-B is to be invoked. But it should have happened "soon before her death." The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it, But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasis the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon before her death." [See also Harjit Singh vs. State of Punjab (2006) 1 SCC 463 )] Indisputably, in order to attract the said provision, it is imperative on the part of the prosecution to establish that the cruelty or harassment has been meted out to the deceased 'soon before her death.' There cannot be any doubt or dispute that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fix period can be indicated therefor. It, however, must undergo the test known as 'proximity test'. What, however, in necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim. A similar question came up for consideration in Thakkar Jha & Ors. No fix period can be indicated therefor. It, however, must undergo the test known as 'proximity test'. What, however, in necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim. A similar question came up for consideration in Thakkar Jha & Ors. vs. State of Bihar (2004) 13 SCC 348 ), wherein this Court held: ''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 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 determination of the period which can came 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 inquestion. There must be existence of a proximate and live link." [See also Baldev Singh vs. State of Punjab (2008) 13 SCC 233 ) ] Yet again in Kamesh Panjiyar Alias Kamlesh Panjiyar vs. State of Bihar (2005) 2 SCC 388 ), this Court held: "The expression' soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with idea of proximity test." This Court in Ram Badan Sharma vs. State of 8ihar (2006) 10 SCC 115 ) wherein one of us was a Member, held: "35. There are three main ingredients of this offence: (a) that, there is a demand of dowry and harassment by the accused on that count; (b) that, the deceased died; and (c) that, the death is under unnatural circumstances within seven years of the marriage. When these factors were proved by reliable and cogent evidence, then the presumption of dowry death under Section 113B of the Evidence Act clearly arose. The aforementioned ingredients necessarily attract Section 304B IPC. Section 304 B is a special provision which was inserted by an amendment of 1986 to deal with a large number of dowry deaths taking place in the country. In the instant case, if the circumstances of the case are analyzed on the touchstone of Section 304B IPC, all the three basic ingredients of Section 304B IPC are present in the instant case. There has been persistent demand of dowry and harassment, humiliation and physical violence and beating by the husband and her in-laws. The deceased died under unnatural circumstances within seven years of the marriage." [See also Devi Lal vs. State of Rajasthan (2007 (12) SCALE 265 (para 20), and State of Rajasthan vsJaggu Ram ( 2008(1) SCALE 22 (Para 11) = 2008(3) 35 RLW 2584 (SC)) 20. The Law Commission submitted its 91st Report on "Dowry Deaths and Law Reforms: Amending Hindu Marriage Act, 1955, the Indian Penal Code, 1860 and the Indian Evidence Act, 1872" wherein it was emphasized that there had been an alarming increase in the number of cases in which married woman die in circumstances which, to say the least, are highly suspicious. Those deaths popularly came to be associated with dowry and that is why it was given the term 'dowry death'. 21. Those deaths popularly came to be associated with dowry and that is why it was given the term 'dowry death'. 21. Some harassment which had taken place one year prior to the death without something more, in our opinion, could not have been considered to be a cruelty which had been inflicted soon before the death of the deceased. It does not satisfy the proximity test. 22. As the death, in our opinion, had not taken place within a period of seven years and there is no' evidence that any cruelty has been inflicted upon the deceased soon before her death neither the presumption in terms of Section 113B of the Indian Evidence Act could have been drawn nor it could be concluded that the appellant is guilty of commission of offence under Section 304-B." 24. In Smt. Shanti and another vs. State of Haryana - AIR 1991 SC 1226 , the Hon'ble Supreme Court has held as under:- "Section 304-B and 498-A are not mutually exclusive. These provisions deal with two distinct offences. It is true that "cruelty" is a common essential to' both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of "cruelty". In Section 304 B there is no such explanation about the meaning "cruelty" but having regard to the common background to these offences the meaning of "cruelty or harassment" will be the same as given in explanation to Section 498A under which "cruelty" by itself amounts to an offence and is punishable. Under Section 304B it is the "dowry death" that in punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498-A and the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further a person charged and acquitted under Section 304-B can be convicted under Section 498A without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498A in view of the substantive sentence being awarded for the major offence under Section 304-B." 25. Learned counsel for the appellant Mr. S.R. Bajwa also relied upon the decision of Hon'ble Supreme Court in the case of Kuldeep Singh & Others vs. State of Delhi- (2004) 12 SCC 528. While acquitting the accused appellants from the offence under Section 302/34 IPC, the Apex Court threw light on the importance of explanation of the accused under Section 313 Cr.P.C. in the following terms: " ... That apart, as rightly pointed out by learned counsel for the appellants, if this piece of evidence as to re-employment of Kuldip was true then it becomes a material piece of evidence as a link in the chain of circumstances relied on by the prosecution, therefore, this link evidence which indicates the likely involvement of the appellant in the crime ought to have been put to the accused while he was being examined under Section 313 Cr.P.C., which was admittedly not done. That being the case, the prosecution has disentitled itself from placing reliance on this piece of evidence. We do not agree with the learned counsel for the respondent that either it is not necessary for the prosecution to have put this circumstance to the accused in his examination under Section 313 Cr.P.C. or that he should plead and establish a prejudice caused to him by such default on the part of the prosecution. As stated above, this is an incriminating circumstance upon which, in our opinion, the prosecution is relying to indicate the involvement of the appellant. Therefore, the question of establishing prejudice does not arise as that is quite apparent, apart from the fact that the prosecution has not proved the fact that Kuldip was re-employed to work in the house of the deceased .. " 26. The Apex Court in Ajay Singh vs. State of Maharashtra (2007) 12 SCC 311 also discussing the object of examination under Section 313 Cr.P.C. held that the words "generally" in sub-section (1)(b) of Section 313 Cr.P.C. does not limit the nature of questioning to one or more questions of general nature relating to the case but it means that question should relate to the whose case generally and should also be limited to any particular part or part of it. The object of the examination under Section 313 Cr.P.C. is to give the accused an opportunity to explain the case made against him. The object of the examination under Section 313 Cr.P.C. is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of tile case if such statement discharges the onus. 27. The word "generally" in sub-section (1)(b) of Section 313 Cr.P.C. does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way so as to enable the accused to know what he is to explain, what arc the circumstances which are against him and for which an explanation is needed. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 Cr.P.C. was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 28. The provisions of Section 313 Cr.P.C. must be observed faithfully and fairly. 29. Learned counsel for the appellants also submitted at the end that if the Court comes to the conclusion that offence under Section 304 B is made out against the appellants then also the period of sentence may be reduced from ten years to seven years, which has already been undergone by the accused and for this purpose, he relied upon the decision of Apex Court in the case of Taiyab Khan & Ors. vs. State of Bihar - (2005) 13 SCC 455 = RLW 2006(1) SC 396 and Ashok Kumar vs. State of Haryana- (2007) 9 SCC 133. 30. From the aforesaid legal position, it is clear that no straitjacket formula or fixed period can be prescribed to cover the words, 'soon before her death' employed in Section 301-B of IPC and it would depend upon the facts of each case. 31. 30. From the aforesaid legal position, it is clear that no straitjacket formula or fixed period can be prescribed to cover the words, 'soon before her death' employed in Section 301-B of IPC and it would depend upon the facts of each case. 31. In the present case, death had occurred in unnatural circumstances within one and a half years of marriage itself. It is also established by various prosecution witnesses that demand of dowry of Rs. 2 lacs cash and a motor cycle by the accused appellant was constant and continuous, which was made after the marriage on 7.5.2001. It may be that about six months prior to her death that deceased informed by the same specifically to her parents and as soon as there was physical beating also in this regard, the family members of the deceased visited the place of accused appellants and upon apology tendered and assurance given by the accused appellants, the parents of the deceased left her behind in the matrimonial home on the assurance that nothing of that sort would be repeated though they had gone there to take her back. PW.1 Nawal Kishore also stated that even after such meeting and their visit, his daughter had again informed him after about one month that her mother-in-law was harassing her for the dowry again and again and he had also talked to accused Shyam Lal at Delhi, who again reassured him but only after telling that they had committed a wrong by visiting their place in Alwar for this purpose. PW.6- Ram Babu, uncle of the deceased, has also stated that three months prior to her death the deceased had come to Bandikui on the occasion of marriage of her cousin and there also she reiterated that her in-laws were constantly harassing her for more dowry. The mother of the deceased, Prem Lata - PW. 7, also stated that whenever she used to talk to her on telephone, she reiterated the demands of her in-laws and her mother-in- law used to stand beside her and constantly repeated the demands of various things on various festivals and even threatened her that she may either commit suicide or they would kill her. Satyabhama specifically told her about demand of Rs. 2 lacs cash and one motor cycle. 32. Satyabhama specifically told her about demand of Rs. 2 lacs cash and one motor cycle. 32. Thus, looking to the series of statements of various prosecution witnesses which are consistent & truthful and the nature of injuries and cause of death, it is clear that prosecution has proved beyond reasonable doubt that death of Satyabhama had occurred in unnatural circumstances within one and a half years of her marriage and. the same occurred on account of constant pestering for dowry demand by her in-laws including the accused appellants. Though, the prosecution had earlier charged the accused for the offence under Section 302 read with 34 IPC but the learned trial Court has acquitted them of said charge and also acquitted the father-in-law Shyam Lal from all the charges and appeal of the State against such acquittal is also said to have been dismissed by the Division Bench of this Court on 2.3.2005. 33. Since no fixed period can be taken while interpreting the term soon before her death' used in Section 304 B IPC, the gap of six months or three months, as has come in the statement of PW.6- Ram Babu cannot snap the link between the dowry demand and death in unnatural circumstances of Satyabhama on 15.12.2002. Even her medical check up and possible treatment for non-conception does not out the possibility of death resulting by cause of harassment and cruelty for dowry demands, which could only add to her grievance and frustration but since the death has occurred in unnatural circumstance at the residential house of the accused appellants only within seven years of marriage, the presumption under Section 113 B of Evidence Act read with Section 304-B IPC can be definitely drawn against the accused appellants. The time gap of is days & 2 months in judgments relied upon by learned counsel for the appellants does not set down any mathematical compartment to fix the words "soon before her death" in such compartments and it could go upto three months or ever six months, as in the present case. 34. In the opinion of this Court, the prosecution has established without any break with the circumstantial evidence the offence under Section 304 B and 498 A IPC against the accused appellants and this Court does not find any ground to taken different view of the matter than the one taken by the learned trial Court. 34. In the opinion of this Court, the prosecution has established without any break with the circumstantial evidence the offence under Section 304 B and 498 A IPC against the accused appellants and this Court does not find any ground to taken different view of the matter than the one taken by the learned trial Court. The judgments relied upon by learned counsel for the appellants arc distinguishable on facts. This Court is further of the view that maximum different punishment of 10 years RI imposed on appellants is just and proper and does not require any reduction. 35. Consequently, this appeal of accused appellants is found to be devoid of merit and same is dismissed.