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2011 DIGILAW 571 (ORI)

ATMARAM SAHU v. STATE OF ORISSA

2011-11-18

I.MAHANTY, J.H.S.BHALLA

body2011
JUDGMENT I. MAHANTY, J. Late Chitranjan Sahu, his wife Pratima Sahu, their son Atmaram Sahu and daughters Pranami and Kautuki faced trial for offences under Sections, 304-B, 498-A, 302 and 34 I.P.C. as well as under Section 4 of the D.P. Act for the death of the wife of appellant-Atmaram, namely, Ratnaprava @ Kalyani. While deceased-accused-Chitranjan Sahu passed away in course of the trial, his son Atmaram was convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default, to undergo R.I. for one year more but acquitted from charges under Sections 304-B, 498-A and 34 I.P.C.. Appellant-Pratima was convicted under Section 4 of the D.P. Act and sentenced to undergo R.I. for one year and to pay a fine of Rs.5000/-in default to undergo R.I. for two months more. In so far as Pranami and Kautuki are concerned, the learned trial court acquitted them of all charges. 2. Criminal Appeal No. 307 of 2004 came to be filed by the appellant Atmaram Sahu son of late Chitranjan Sahu and his mother Pratima Sahu, seeking to challenge their conviction under Section 302 I.P.C. and Section 4 of the D.P. Act, respectively, vide judgment dated 28.9.2006 passed by the learned Additional Sessions Judge, Talcher in S.T. Case No. 39-A of 1996. 3. The State of Orissa filed a leave to appeal (i.e. CRLLP No.30 of 2005) and on leave being granted, the same was registered as GCRLA No.35 of 2007, seeking to set aside of the impugned judgment and order dated 28.9.2004 passed in S.T. Case No.39-A of 1996, and to convict all the accused persons as per the charges framed against them in course of the trial. 4. The informant-Narayan Patra (father of the deceased-Kalyani) came to file a petition which is registered as Criminal Revision No.543 of 2007. All these matters being inter-connected, were heard along with the criminal appeal filed by the convicted persons, as well as, Government Criminal Appeal. Accordingly, all the aforesaid matters were taken up for hearing together and disposed of by this common judgment. 5. All these matters being inter-connected, were heard along with the criminal appeal filed by the convicted persons, as well as, Government Criminal Appeal. Accordingly, all the aforesaid matters were taken up for hearing together and disposed of by this common judgment. 5. At the outset, it is important to note herein that the informant-Narayan Patra, who was heard in this matter on several occasions, raised various objections regarding the composition of the Bench which was constituted on the directions of the Hon’ble Chief Justice to hear this matter and the said objections came to be considered and have been duly rejected by separate orders which would speak for themselves. Although the conduct of the informant-Narayan Patra who was appearing in person was unbecoming and provocative, this Court decided not to take any action against the informant keeping in view the fact that the informant had lost his eldest daughter and was in great emotional distressed. Keeping the aforesaid circumstances in view, this Court proceeded to hear all parties to the proceeding. 6. The case of the prosecution is that, the appellant-Atmaram Sahu (son of the deceased-accused-Chitaranjan Sahu) had married to the deceased Ratnaprava @ Kalyani (daughter of Narayan Patra) in accordance with the Hindu rites on 27.5.1994. Ratnaprava @ Kalyani passed away on 15.6.1995 and U.D. Case No.4 of 1995 was registered at Talcher P.S. based upon the information given by the deceased-accused-Chitaranjan Sahu at about 2.15 P.M. on the same day. Inquest was duly performed on the body of the deceased-Kalyani and thereafter, post-mortem was conducted by Dr. Loknath Acharya (P.W.9). After completion of the post-mortem, the body of the deceased-Kalyani was handed over to the family members and on the same night, the deceased was cremated at Talcher. 7. The informant-Narayan Patra returned from Talcher along with one Sansarabindu Prusty-P.W.14 (Maternal uncle of accused-Atmaram) to Cuttack and spent the night in his house and on the next day early morning, left for his own house at Bhubaneswar. It appears from the evidence of Sansarbindu Prusty, that since the informant had left his house without any intimation he send a letter (Ext.6) to the informant, expressing his grief over the death of Kalyani. It appears from the evidence of Sansarbindu Prusty, that since the informant had left his house without any intimation he send a letter (Ext.6) to the informant, expressing his grief over the death of Kalyani. This letter was hand delivered and the informant replied to the aforesaid letter (under Ext.K), expressing his grave doubt over the circumstances that led to his daughter’s demise, which is noted hereunder:- “ xx xx xx the unhappiness thing is -since doubts were raised in my mind, I have decided to lodge a case in consultation with a lawyer to unearth the truth. The main ground of doubts is as to why they did not bring my daughter to Cuttack and kept it there. Second reason is as the father, I have a responsibility to know the truth by lodging cases.” 8. The informant sent various communications to various authorities indicating his suspicion over the circumstances of his daughter’s death and on 19.6.1995, the Circle Inspector of Police came to the residence of the informant, where he presented a written report which was treated as F.I.R. The relevant portion of the F.I.R. is extracted herein below: “ xx xx xx On last 15.6.1995, Sri Sansarbindu Prusty (Maternal uncle of Atmaram) intimating that Sri Chittaranjan Sahu is seriously ill, took me to Talcher. I reached the house of my daughter’s father-in-law at around 2 P.M. and saw that my daughter had died and her dead body was kept on a veranda. I shouted at the sight and when I enquired about it, Chittaranjan Sahu told me that in the early morning Kalyani fell in the Bathroom and died. He also disclosed that doctor had come and examined the said deceased Kalyani. But I did not find any injury on the head or hand of my daughter. But there was ligature mark on the neck of the deceased. Hence doubts were raised in my mind and I asked them to hand over the dead body for her examination and postmortem in the SCB medical College and hospital. But they did not agree with me and intimated to the local police station. Doctor conducted postmortem. xxxx xx xx xx While staying in my house, my daughter used to disclose her unhappiness before us. Her two younger sister-in-law and mother-in-law use to torture her for not taking T.V., Scooter and Grinder. She was compelled to cook food. But they did not agree with me and intimated to the local police station. Doctor conducted postmortem. xxxx xx xx xx While staying in my house, my daughter used to disclose her unhappiness before us. Her two younger sister-in-law and mother-in-law use to torture her for not taking T.V., Scooter and Grinder. She was compelled to cook food. They do not allow her to take rest. They also use to speak ill of Kalyani so that she is abused by her husband. Last time she had disclosed about the torture by her sisters-in-law and husband and was reluctant to go to her father-in-law’s house. Last time I had been to her on 1.4.1995 with clothes for her birth day. When she cried in front of me, it created apprehension in my mind and I met with her mother-in-law, father-in-law and the husband and brought her to my house on 2.4.1995. Reaching home my daughter cried before me after disclosing the torture meted by the sisters-in-law, mother-in-law and the husband under intoxication and disclosed not to go their place. But on 21.4.1995 her husband and her mother-in-law came and by assuring us of no problem, took her to their house. Under such circumstances it is not believable that she has died on 15.6.1995 by falling in the bathroom for the following reasons: 1. Why they did not take her to the hospital 2. Why they did not take her to Cuttack hospital 3. My daughter was quite hale and hearty and was suffering from no illness. 4. There was no injury on her head but there was ligature mark on her neck 5. She was not allowed to write letters. They use to go through the letters of my letter and the same is sent along with the letter of her husband. As a result she was not able to intimate her unhappiness. 6. Whenever she discloses about her in-law’s house, she also asks not to intimate to others. So she always talk good of her in-laws family members. She use to tell us that if the facts about her in-law’s family will be disclosed before others, it will hamper their respect and prestige and she will be more tortured by the member of her in-law family. 7. So she always talk good of her in-laws family members. She use to tell us that if the facts about her in-law’s family will be disclosed before others, it will hamper their respect and prestige and she will be more tortured by the member of her in-law family. 7. But the sisters-in-law and mother-in-law of my daughter use to torture her and being influenced by them her husband also use torture and assault Kalyani and they have ultimately killed her. But in order to hide the crime they have put string around her neck to give an impression that she has committed suicide. But being apprehensive of being get caught they have taken the plea that she has died on falling in the bathroom. 8. Out of the persons assembled at the spot some one was saying that because of their restrain to wait till arrival of deceased’s father, they have not been able to cremate the deceased otherwise they were in a mood to cremate the deceased in his absence. 9. The sisters-in-law were in the habit of telling lies to the husband of Kalyani so that Kalyani is abused by her husband. Hence, the husband, mother-in-law and sisters-in-law of my daughter by torturing Kalyani had ultimately killed her and have tried to give it a colour of suicide. But having failed in their attempts to get rid of the crime they have disclosed that the deceased has died by falling on the bathroom. Chittaranjan Sahu is also concerned in the crime. xx xx xx ” 9. The trial court framed six points for determination and answered in the following manner: (i) Whether deceased Kalyani died within 7 years of her marriage? Ans: Yes. (ii) Whether death of the deceased Kalyani was due to antemortem hanging or a homicidal one? Ans.: Homicidal (iii) Whether deceased Kalyani was subjected to ill treatment physically and mentally due to non-payment of cash of Rs.50,000/-towards remaining dowry articles. Ans: Yes. (iv) Whether on 15.6.95 the accused persons in furtherance of their common intention committed dowry death of the deceased? Ans: No. (v) Whether the accused persons in furtherance of their common intention committed murder of deceased Kalyani? Ans: Yes – Atmaram Sahu (vi) Whether the accused persons in furtherance of their common intention had demanded dowry before the marriage, at the time of marriage and after the marriage? Ans: Yes. Ans: No. (v) Whether the accused persons in furtherance of their common intention committed murder of deceased Kalyani? Ans: Yes – Atmaram Sahu (vi) Whether the accused persons in furtherance of their common intention had demanded dowry before the marriage, at the time of marriage and after the marriage? Ans: Yes. In the light of the findings as noted hereinabove, it becomes highly essential first of all to deal with Point No.2, i.e. whether the death of the deceased Kalyani was due to antemortem hanging or a homicidal one. 10. The informant-Narayan Patra submitted as follows: (i) The prosecution had succeeded in establishing the fact that deceased Kalyani died a homicidal death and that it has been established by the circumstantial evidence that the accused Atmaram has committed the murder of the deceased by “throttling”. The other accused persons assisted accused Atmaram, in the above act. Accused Atmaram therefore, is liable to be convicted u/s.302 I.P.C. and other accused persons are liable u/s.302 I.P.C. with the aid of section 34 I.P.C. (ii) It was next contended that prosecution has succeeded in establishing the fact that the accused persons in furtherance of their common intention had caused dowry death. Hence they are liable to be convicted u/s.304-B I.P.C. (iii) Further, he contended that there is sufficient evidence on record to hold that the accused persons had ill-treated the deceased demanding cash of Rs.50,000/-in lieu of other dowry articles. Hence they are liable to be convicted u/s.498-A I.P.C. (iv) Further, it was submitted that accused persons had demanded dowry before the marriage, at the time of marriage and after the marriage. Hence, they are also liable to be convicted u/s.4 of the D.P.Act. 11. In this respect, the trial court in Paragraph-40 came to a conclusion that various circumstances noted in Paragraph-39 thereof go against the theory of antemortem hanging and conduct of the accused persons in the matter of dealing with such a delicate matter and came to find that the death of deceased-Kalyani was not due to antemortem hanging and hence, homicidal in nature. To reach the aforesaid conclusion, the trial court has narrated the circumstances in Paragraph-39 which are extracted hereinbelow: “39. On the other hand, from the following circumstances and conduct of the accused persons, it can not be said that death of the deceased was due to antemortem hanging. To reach the aforesaid conclusion, the trial court has narrated the circumstances in Paragraph-39 which are extracted hereinbelow: “39. On the other hand, from the following circumstances and conduct of the accused persons, it can not be said that death of the deceased was due to antemortem hanging. (i) None of the family members of the accused has seen the deceased in a hanging position. On the other hand deceased accused Chitaranjan lodged written report the copy of which has been marked as Ext.39 stating that on 15.6.1995 at about 6.30 A.M. he saw the deceased lying on the floor facing upwards. Further, he has stated that the deceased met an accidental death due to fall on the bath room. The above circumstance goes to show that there was no such case of antemortem hanging of the deceased. (ii) In case of suicide resorted to by literate persons it is but natural that they leave behind farewell note stating about the reason for resorting to the extreme action. The deceased was a final year law student. Her father was a service holder. There is absolute no reason as to why she would commit suicide as life is most precious. Thus, absence of a farewell note is against the claim of antemortem hanging. (iii) Hanging is a common form of suicide among men. Women generally resort to drowning or self immolation. When there was a well on the way to the bath room of the Court yard of the accused persons, the reason of victim’s preference to hanging is not believable. (iv) If it was a case of ante-mortem hanging there is absolute no reason as to why no outsider was called to be a witness to the above fact. (v) Talcher Police station is situated at a distance of 100 meters from the house of the accused persons. If it was a case of suicidal hanging accused persons could have called any police officer to the spot, soon after discovery of the dead body in the bath room of the accused persons and there would have been opportunity to the police to effect seizure of the instruments used in antemortem hanging. (vi) Bail petitions were also filed before the Hon’ble Court vide Ext.25 and 26. The accused persons could have disclosed in the bail petitions about the cause of death of the deceased due to antemortem hanging. (vi) Bail petitions were also filed before the Hon’ble Court vide Ext.25 and 26. The accused persons could have disclosed in the bail petitions about the cause of death of the deceased due to antemortem hanging. But it was mentioned in the bail applications that the deceased died falling on the bath room. The accused persons therefore suppressed the real cause of death of the deceased. (vii) Accused persons came to know about the death of the deceased in the early morning. They could have intimated the father of the deceased over telephone, if it was a case of suicidal. Even Sansarbindu Prusty Maternal uncle of accused Atmaram who had gone to call the informantfrom Bhubaneswar did not disclose the death news. From the above conduct of the accused persons, it can be inferred that it was not a case of antemortem hanging. (viii) As per the evidence of the I.O. and spot map there were five bath rooms in a row. Each of the bath room was divided by partition walls of height of 6 feet 10 inches. When the partition walls were of low height, the deceased could not have preferred the bath room as a place for commission of suicide as there was possibility of other family members coming to know about such a fact at the time of preparation. (ix) Deceased accused Chitaranjan lodged the report at the P.S. on 15.6.05 basing on which U.D. Case No.4 dated 15.6.95 was registered. The inquiring Officer could have effected seizure of the alleged G.I. Pipe and cotton saree used in hanging on 15.6.95. What was the occasion for the inquiring officer to effect seizure of a G.I. Pipe and cotton saree after three days of the incident on production by the accused persons. It is, therefore, conspicuous that when the accused persons managed to procure a P.M. report telling about the death of the deceased due to antemortem hanging, on 17.6.5 such a pipe and cloth were shown to be used by the deceased in commission of suicide. From the above conduct of the accused persons and inquiring officer it is patent that they have managed to give a colour of antemortem hanging of the deceased which was not at all true. (x) The G.I. pipe is six to seven feet in length and two inches in diameter. From the above conduct of the accused persons and inquiring officer it is patent that they have managed to give a colour of antemortem hanging of the deceased which was not at all true. (x) The G.I. pipe is six to seven feet in length and two inches in diameter. It is not an ordinary P.H.D. fitting of the bath room. Such pipes have also not been put on other partition walls of the remaining four bath rooms. There is absolutely no reason as to why such a big size G.I. Pipe had been put on the partition walls of the bath room of the deceased. It appears that when there was no scope for committing suicide by hanging in the bath rooms, such an idea was introduced to give a colour to the death of the deceased as antemortem hanging. The idea of putting such a big size pipe is to show that it could carry the weight of the deceased who was of a strong and stout body. More over when the alleged G.I. Pipe was at a height of six and half feet height, it was not possible for committing suicide by hanging from such a G.I. Pipe with the help of a cloth as legs would touch the floor if one would remain in a hanging position by using a cloth. Thus the idea projected by the defence that it is a case of antemortem hanging is not acceptable. (xi) Ordinarily, there would be injuries on the body of a person when he prefers death by antemortem hanging. When there was no external injury on the body of the deceased, it is against the theory of antemortem hanging.” 12. Thereafter in Paragraph-44 of the judgment, the trial court summarized the reasons as to why it came to the conclusion that the death of the deceased is “homicidal” and the same are noted herein below: “44. The learned counsel for the defence further pointed out that as there was no sign of violence on the body of the deceased, it could not be a case of death by throttling. But if the wind pipe is compressed so suddenly to conclude the passage of air altogether, the individual would render powerless to call for assistance and becomes insensible and may die instantly. In the present case the deceased was the own wife of accused Atmaram. But if the wind pipe is compressed so suddenly to conclude the passage of air altogether, the individual would render powerless to call for assistance and becomes insensible and may die instantly. In the present case the deceased was the own wife of accused Atmaram. The incident happened in the night while she was sleeping in her bed room with accused Atmaram. If a husband with the intention of killing his wife would put his hand around the throat, there would be no scope for resistance for a wife as it is a friendly hand and she had no knowledge about the ulterior motive behind such posture. Hence, absence of signs of violence on the body of the deceased is not a ground to negative the theory of death by throttling. The death of the deceased is homicidal due to the following reasons:- i) P.M. Hypothasis was present over back. It is therefore, a symptom of homicide. ii) There were bruises on both sides of the neck which is possible by the pressure of fingers. The above symptoms is possible by throttling. iii) The deceased died due to asphyxia and shock which are also due to throttling. In addition to the above findings from post mortem appearance, the circumstances established in the case also point out a case of homicidal death. Prosecution therefore, has succeeded in establishing the fact that death of deceased Kalyani on 15.6.95 was a homicidal one”. 13. Learned Additional Sessions Judge, Talcher in paragraph-61 of the judgment placed reliance on Section 106 of the Evidence Act and noted that the “last seen theory” comes into play in the present case since the deceased Kalyani was last seen alive in the company of the accused Atmaram in their bed room, after dinner on the night of 14.6.1995 and “since accused Atmaram and deceased had slept together in their bed room on that night prior to the deceased being found dead in the morning of 15.6.95. In the above facts and circumstances, it was reasonable to ask the accused to disclose as to who killed her when she was with him in his bed room on that night. It was further held that, it was for the accused Atmaram to show that “ANY PERSON OTHER THAN HIM WAS RESPONSIBLE FOR THE DEATH OF THE DECEASED.” 14. In the above facts and circumstances, it was reasonable to ask the accused to disclose as to who killed her when she was with him in his bed room on that night. It was further held that, it was for the accused Atmaram to show that “ANY PERSON OTHER THAN HIM WAS RESPONSIBLE FOR THE DEATH OF THE DECEASED.” 14. It becomes relevant to take note of the cause of death as noted in the postmortem report. “Death is due to asphyxia and shock caused by antemortem hanging”. Apart from the above opinion as sought from the doctors who carried out postmortem examination i.e., the cause of death and their answers to the queries made by the Investigating Officer are quoted hereunder for reference: “On 11.9.95 in reply to the querry of the I.O. it was furnished after examination of referring to the report and the Material objects that the ligature mark found on the neck of the deceased Kalyani @ Ratnaprava Sahu was continuous covering three sides of the neck i.e. Anteriour and both lateral sides. It was also obliquely and the mark was interrupted posteriourly where the knot was supposed to remain. The impression of the knot was not clear because of the interruption of thick toft of the hair. The margins of the mark was congested and on dissection of the base of the mark showed dry glistening and parthment white tissue which proved antemortem hanging. Also we opined that the death of the deceased was caused by hanging (knot strangulation) which was suicidal in nature due to (a) ligature mark was continuous and was placed obliquely over the neck (b) the mark was not situated below the thyroid cartiledge and (e) there was no external violence about the body of the deceased. This is that report which has been marked as Ext.10. This is my signature which has been marked as Ext.10/3. Further, in reply to the query of the I.O. we also opined that the ligature mark found on the neck of the deceased Kalyani might be possible with the saree M.O.I. This is the report which has been marked Ext.11. Ext.11/2 is my signature therein. Further, in connection of further query by the Investigating Officer, I along with Dr. L.N. Prasad examined the P.M. report in presence of Prof. R. Dash, head of the Deppt. Ext.11/2 is my signature therein. Further, in connection of further query by the Investigating Officer, I along with Dr. L.N. Prasad examined the P.M. report in presence of Prof. R. Dash, head of the Deppt. F.M & T replied that there was no antemortem feature relating to gagging or existence of the injury on or around the mouth and nostril of the deceased. We did not agree with the proposition of the I.O. that the deceased was first gagged and then hanged as the ligature mark found around the neck of the deceased was antemortem in nature. This is the report marked Ext.12. Ext.12/2 is my signature therein. 15. From the records of the case, it appears that late accused-Chitaranjan had sought for immediate medical assistance on 15.6.95 itself, i.e. in the morning on the death of Kalyani. Dr. Sidheswar Mishra (P.W.6) stated that he was a private medical practitioner at Talcher and on 15.6.1995 at about 7.20 A.M. one Sankalpa Sahu had come to call him to attend his sister-in-law Kalyani at his residence. He claims to have rushed to residence of the deceased and found that she (Kalyani) had already expired and also noticed a red colour ligature mark on her right side neck. He suspected that this was a case of suicidal hanging and he advised the family members to inform the police whereafter he had left the house. Dr. Lokanath Acharya (P.W.9), Sub-divisional Medical Officer, Talcher had also approached through one Sankalpa Sahu and one Bajrang Agarwalla at 7.15 A.M. on 15.6.1995 and requested to come to the house of late-Chitaranjan Sahu. He further stated that he had been to the house of the accused persons and on hearing that the patient had already died, he returned back. 16. Thereafter it appears that one Sansarabindu Prusty (P.W.14) (brother of accused appellant-Pratima and maternal uncle of appellant-Atmaram) stated that he had been informed early morning on the date of death of Kalyani and on the request of deceased-Chittaranjan had gone to the house of Narayan Patra (informant-P.W.11) and told him to accompany him to Talcher since Chitaranjan Sahu had requested him over telephone to bring Narayan Patra to Talcher. He has further stated that on 15.6.1995 at about 7.00 A.M. to 8.00 A.M. Chitaranjan had intimated to him over telephone to come Talcher as the condition of the deceased-Kalyani was serious for which he requested him to come with the father of Kalyani (Narayan Patra-P.W.11). He further stated that after reaching to the house of Narayan Patra on 15.6.1995, he told Narayan Patra with regard to illness of Kalyani and requested to accompany him to Talcher and said about the information by which he had received from Chitaranjan Sahu. 17. On their arrival at the house of Chitatranjan, when they asked about the gathering, late Chitranajan told – “Kalyani had committed suicide and Narayan Patra was present at that time and both of them went to see the dead body.” The dead body was lying on the veranda of the bed room of house of late Chitaranjan. Chitaranjan told that he was waiting for Narayan Patra to arrive before going to police station for lodging of the F.I.R. as Kalyani had committed suicide. But Narayan Patra suggested not to report about the incident as it would affect the prestige of both the families. Thereafter some discussions were made between Narayan Patra and Chitaranjan Sahu and both of them went to the police station to lodge F.I.R. to the effect that Kalyani died due to falling in the bathroom. He further stated that after U.D. case was registered pursuant to the information provided by late Chitaranjan Sahu, when police came to the house of Narayan Patra and asked him whether he had any complaint, Narayan Patra told that they were godly persons and he had no grievance against them concerning the death of Kalyani nor he did make any complaint before the police about any demand of dowry or subjecting deceased Kalyani to any ill-treatment. He further stated that Narayan Patra had returned to Cuttack along with him on that night at 11.00 P.M. 18. The evidence as narrated hereinabove as well as the statement recorded under Section 161 Cr.P.C. of late Chitaranjan Sahu recorded by the police in the connected U.D. case clearly indicate that the alleged place or location of death of Kalyani was in the bathroom from which location the deceased had been brought to the veranda of the ground floor. The evidence as narrated hereinabove as well as the statement recorded under Section 161 Cr.P.C. of late Chitaranjan Sahu recorded by the police in the connected U.D. case clearly indicate that the alleged place or location of death of Kalyani was in the bathroom from which location the deceased had been brought to the veranda of the ground floor. Thereafter medical assistance was quickly sought for and two doctors i.e. P.Ws.6 & 9 were called to the house of late Chitaranjan for medical treatment of deceased Kalyani. Thereafter late Chitranjan asked his brother-in-law Sansarabindu Prusty who was residing at Cuttack to go to Bhubaneswar to collect Narayan Patra and to come immediately to Talcher On the arrival of Narayan Patra at Talcher, after some discussions late Chitranjan Sahu went to the police station to lodge a report regarding death of Kalyani along with Narayan Patra (informant). 19. The aforesaid facts coupled with the evidence of Investigating Officer (P.W.17)to the seizure of steel pipe as well as a saree allegedly used in course of suicidal hanging, clearly establish the fact that death in question was antemortem hanging and suicidal in nature. No amount of hypothesis or guess work is permissible in course of a criminal trial. The reasons noted at paragraph-39 of the judgment of the trial court as noted herein above are clearly hypothesis and based on surmises and conjectures. As to why a literate person who committed suicide has not left behind a farewell note ascribing a reason for resulting to such extreme action is of no real consequence and is illustrative of the purely presumptive nature of the conclusion arrived at by the trial court. Further, as to why the deceased did not commit suicide by jumping into the well located near the bathroom is clearly conjecture or surmise. All the reasons noted in paragraph-39 including as to why the appellant had not indicated in the bail petition moved before this Court as to the cause of death of the deceased, is again matters of pure conjecture and surmise. We are afraid the grounds stated in paragraph-39 by the trial court to arrive at a conclusion that the death of the deceased was homicidal and not due to antemortem hanging are based on pure conjecture and surmises and, therefore, cannot be upheld and consequently, acquit the appellant-Atmaram Sahu of the alleged offence under Section 302 I.P.C. 20. We are afraid the grounds stated in paragraph-39 by the trial court to arrive at a conclusion that the death of the deceased was homicidal and not due to antemortem hanging are based on pure conjecture and surmises and, therefore, cannot be upheld and consequently, acquit the appellant-Atmaram Sahu of the alleged offence under Section 302 I.P.C. 20. Further, Section 106 of the Evidence Act was relied upon by the trial court in the present case. It is a well settled principle of law that Section 106 of the Evidence Act is an exception to Section 101 which lays down the general rule that the burden of proof in a criminal case on the prosecution and Section 106 is not intended to relief the prosecution of its duty. The Hon’ble Supreme Court in the case of Mohd. Usman v. The State of Bihar, AIR 1968 SC 1273 in which case on the date of occurrence, four minor children were killed who had been employed by the accused for manufacture of explosives. Hon’ble Supreme Court came to hold that, the onus was on the prosecution and the prosecution had to prove all the ingredients of the offence, and Section 106 of the Evidence Act did not absolve the prosecution from proving its case. If Section 106 of the Evidence Act was interpreted otherwise by the trial court, it would lead to a conclusion that, the burden lies on the accused to prove that he did not commit murder because he can know better than he whether he did or did not. The Privy Council refused to consider Section 106 to mean that the burden lies on an accused person to show that he did not commit the crime for which he has tried. In Attygalle v. Emperor, 1936(3) AII ER 36 and Stephen Seneviratne v. The King, A.I.R. 1936 Privy Council 289. Therefore, it is clear that the trial court has erred in law by seeking to apply Section 106 of the Evidence Act to the present case since the same has no application whatsoever to the fact situation that arises for consideration in the present case. 21. Now it become necessary to deal with Section 304-B of the Indian Penal Code. The trial court has dealt with the said issue while dealing with the point nos. 3 and 4 in its judgment and essentially after perusing the evidence of P.Ws. 21. Now it become necessary to deal with Section 304-B of the Indian Penal Code. The trial court has dealt with the said issue while dealing with the point nos. 3 and 4 in its judgment and essentially after perusing the evidence of P.Ws. 11, 12 and 13 coupled with the letters between the accused-Atmaram and his wife-Kalyani. Learned Sessions Judge came to a finding that the deceased had not been subjected to any ill-treatment or harassment demanding dowry or cash of Rs.50,000/-soon before her death. He further came to a finding that sporadic incidents of giving a slap by the accused-Pratima (mother-in-law) to the deceased or throwing of the food plate by accused-Pranami in a state of anger did not constitute cruelty or harassment within the meaning of the definition of the term cruelty and harassment contained in Section 498-A I.P.C.. In view of the aforesaid finding the learned Sessions Judge concluded that the prosecution had miserably failed to establish the most essential ingredients of Sections 304-B and 498-A I.P.C. 22. It is well settled in law by a catena of decisions of the Hon’ble Apex Court and in the case of Kans Raj v. State of Punjab, AIR 2000 SC 2324 in order to convict under Section 304-B I.P.C. for an offence of dowry death, the prosecution is required 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; (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. 23. On a conjoint reading of Section 113-B of the Evidence Act and Section 304-B of the Indian Penal Code, there must be material to show that “soon before her death”, the victim was subjected to cruelty or harassment and further that, the prosecution has to rule out the possibility of a natural or accidental death so as to bring the victim’s death within the purview of “death occurrence otherwise than in normal circumstances”. The term “soon before” in Section 304-B I.P.C. has not been statutorily designed and it would depend upon the circumstances of each case and no strait-jacket formula has been led down as to what would constitute a period of “soon before” the occurrence. Yet, it is well settled in law that there must be existence of a “proximate and live link” between the effect of cruelty based on dowry demand and concerned death. 24. In the present case, learned Sessions Judge on perusing the oral and documentary evidence on record came to hold that the evidence of P.Ws. 11, 12 and 13 shows that it is the deceased-accused-Chitaranjan Sahu who expressed the desire to take a scooter, colour TV, refrigerator, washing machine, steel almirah, sofa set, double bed, Alana and dressing table as dowry for the marriage apart from 10 Varis of pure gold in shape of ornaments. Such a demand by the deceased–Chitaranjan continued after the marriage and on the 4th day of marriage when P.W.11 (informant) had been to the house of the accused persons carrying the dowry articles it was the deceased-accused-Chitaranjan Sahu who had asked the informant for payment of Rs.50,000/-. The learned Sessions Judge found that it is the consistent plea of the above three witnesses that it is the only deceased-accused-Chitaranjan who was present at the time of payment of Rs.50,000/-towards the dowry articles. The learned Sessions Judge further discussing the evidence of P.W.11 found that although the informant had voluntarily given Rs.50,000/-to the accused-Atmaram Sahu expressing that there was no necessity for payment of the above amount and further, the trial court found that on 21.4.1995 i.e. the date on which Kalyani returned to her matrimonial home and on 15.6.1995 there appears to have been no further demand of dowry and the last letter (ten days prior to her death) written by the deceased-Kalyani to her sister indicates that everything was good in her matrimonial house. 25. 25. In the light of the aforesaid facts, learned Sessions Judge came to hold that the prosecution had failed to establish the most essential ingredients of Sections 304-B and 498-A I.P.C. The Hon’ble Supreme Court in the case of Ashok Kumar v. State of Haryana, AIR 2010 SC 2839 came to hold that the expression “soon before death” cannot be given restricted or a narrower meaning and should be understood in their plain language and with reference to their meaning in common parlance. In the case of Tarsem Singh v. State of Punjab, AIR 2009 SC 1454 , the legislative object in providing such a radius of time by treating the words “soon before her death” is to only emphasize 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 reasonable, if not direct nexus between her death and the dowry related cruelty or harassment inflicted on her. The period, what is the reasonable time, is vary from case to case and depends upon the facts of each case, the conduct of parties, the impact of cruelty and harassment inflicted to the deceased with regard to the demand of dowry. Section 304-B I.P.C. contains the deeming provision or of presumptive clause and the legislature had applied to the provision of Section 304-B I.P.C. where other ingredients of Section 304-B are satisfied and that, even the husband or relative shall be deemed to have caused her death. 26. In view of the facts as noted hereinabove and the judgment of the Hon’ble Supreme Court as referred hereinabove, in our considered view the finding of the trial court on Section 304-B I.P.C. cannot be supported. Clearly, the trial court fell into error in this regard, since the learned Sessions Judge has himself found that the dowry harassment had been meted out to the deceased-Kalyani by deceased-accused-Chitaranjan and the said deceased-accused had made the demand to the informant-Narayan Patra, prior to the marriage, after the marriage and had continued thereafter. The cruelty or harassment conceived of in Section 304-B could be not only by the husband of the deceased but also by any relative of the husband. The cruelty or harassment conceived of in Section 304-B could be not only by the husband of the deceased but also by any relative of the husband. In the present case, since the trial court came to a finding that the father of Atmaram (husband) had continuously harassed the deceased-Kalyani and her father with demand of dowry, the said ingredient of Section 304-B I.P.C., in our view, has been clearly satisfied. Even though no specific evidence is available on record regarding the demand of dowry or harassment by the accused-Atmaram, in our considered view, the legislative intent behind Section 304-B I.P.C. introducing the deeming clause or presumptive clause comes into operation in the present case, even though in the present case there is no evidence regarding any demand of dowry and/or harassment for such matters by Atmaram (husband) appellant herein, yet, the demand of dowry made by the deceased– accused-Chitaranjan Sahu (father of Atmaram), in our considered view, is adequate for the purpose of Section 304(B) I.P.C. Kalyani had been married to Atmaram on 27.5.1994 and passed away on 15.6.1995 and her death was suicidal in nature, inter alia, by the harassment caused to her for non-fulfillment of dowry demand by the deceased-accused-Chitaranjan Sahu. On perusing the evidence on record all the necessary following ingredients of Section 304-B I.P.C. are clearly satisfied. a) The death of Kalyani had occurred otherwise than under normal circumstance i.e. suicidal hanging; b) such death occurred within seven years of her marriage (marriage-27.5.1994 & death-15.6.1995); c) Kalyani had been subjected to cruelty or harassment by deceased-accused-Chitaranjan Sahu, who was the father of husband-Atmaram Sahu (appellant herein); d) such cruelty or harassment by deceased-accused-Chitaranjan Sahu on deceased-Kalyani was in connection with the demand of dowry; and e) such cruelty or harassment had been meted out to the deceased soon before her death and although the last demand by deceased-accused-Chitaranjan Sahu was approximately two months prior to Kalyani’s death, we are of the considered view that the same did constitute cruelty or harassment soon before her death in the circumstances of this case. 27. Accordingly, we hold the appellant-Atmaram Sahu guilty of an offence under Section 304-B of the Indian Penal Code. 27. Accordingly, we hold the appellant-Atmaram Sahu guilty of an offence under Section 304-B of the Indian Penal Code. Insofar as Appellant No.2 (Pratima Sahu) is concerned, she had been found guilty under Section 4 of the D.P.Act and had been sentenced to R.I. for one year and fine of Rs.5000/-, in default, R.I. for two months more. We are of the considered view that the aforesaid conviction is sustainable in law, but since the Appellant-Pratima Sahu is in advanced age of about 66 years and also, in the meantime, she has been widowed, the end of justice would be best met if the sentence imposed on her is reduced to the period of R.I. for one month along with imposition of fine of Rs.5000/-. Insofar as accused persons Pranami Sahu and Kautuki Sahu are concerned they had been acquitted of charges under Sections 302, 304-B and 498-A I.P.C. and after hearing the learned counsel for the parties and on perusing the evidence on record, we find no justifiable reason to interfere with such acquittal and accordingly, affirm the same. 28. In view of the facts and law discussed hereinabove, we allow the Criminal Appeal No.307 of 2004 in part and set aside the conviction in respect of the appellant-Atmaram Sahu under Section 302 I.P.C. Consequently, also partly allow the Government Criminal Appeal No.35 of 2007 and Criminal Revision No.543 of 2007 by holding the appellant-Atmaram Sahu guilty of an offence under Section 304-B I.P.C. and sentence him to undergo R.I. for a period of ten years. The period undergone by the appellant-Atmaram Sahu be set off. Criminal Appeal No. 307/04 allowed. GOVT.CRLA No. 35/07 partly allowed. CRLREV No.543/07 partly allowed.