JUDGMENT Hon’ble Prafulla C. Pant, J. Judgment and order dated 29.04.2010, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 25 of 2007, whereby said court has convicted the three appellants Jitendra Singh (husband), Shoor Singh (father-in-law) and Gangotri Devi (mother-in-law) under section 304B IPC, and sentenced each one of them to rigorous imprisonment for a period of ten years and directed to pay fine of ‘ 50,000/-. Each one of the appellants has been further convicted under section 498A IPC, and sentenced to rigorous imprisonment for a period of one year. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story in brief is that appellant Jitendra Singh got married to Neelam (deceased) in the intervening night of 01 .03.2006 and 02.03.2006, in village Jood. After about nine and half months of the marriage a son was born out of the wed-lock on 30.12.2006. Naming ceremony of the son was performed on 11.01.2007. Within seven days thereafter on 17.01.2007, Neelam died of extensive burn injuries. P.W.1 Shankar Singh (father of the deceased) lodged First Information Report (Ex. A1) on the very day (17.01.2007) with Revenue Patti Patwari Lagoor Walla, Circle 2, complaining the dowry death. (In Uttarakhand Hills in certain areas Revenue Officials have been given police powers). In said FIR it is alleged by the complainant (P.W.1) that on 04.01.2007, when he went to the matrimonial house of his daughter Neelam her in-laws demanded a motor-cycle and ‘ 50,000/- to be given on the naming day ceremony. On 11.01.2007, Neelam told her mother that her husband, father-in-law and mother-in-law have asked for motor-cycle and ‘ 50,000/-. 4. It is also alleged in the FIR that deceased told her parents that if the demand is not fulfilled she would be killed. A crime no. 1 of 2007, was registered by the Revenue Police and investigation started. P.W. 6 Sampoornand a Patwari, after preparing the check report of FIR and made necessary entries in the General Diary, went to the village Hitkandhala (matrimonial house of the deceased) and took the dead body of Neelam in his possession and prepared inquest report (Ex. A2). The dead body was sealed, and necessary papers were prepared whereafter dead body was sent for post-mortem examination. P.W. 4 Dr. S.P.S. Negi of Government Joint Hospital, Kortdwar, conducted post mortem examination on 18.01.2007, and prepared autopsy report (Ex. A2). The dead body was sealed, and necessary papers were prepared whereafter dead body was sent for post-mortem examination. P.W. 4 Dr. S.P.S. Negi of Government Joint Hospital, Kortdwar, conducted post mortem examination on 18.01.2007, and prepared autopsy report (Ex. A3). The said Medical Officer recorded ante mortem injuries, and opined that deceased had died of shock due to ante mortem burn injuries. Smell of kerosene is also mentioned in the report of the medical officer, who found that whole of the body burnt, black coloured, charred and roasted except four percent of feet and four percent of pubic region. The Patwari inspected the spot and interrogated the witnesses. The investigation was later transferred to P.W. 7 Ram Charan Naib Tehsildar of the area who completed the investigation and submitted charge sheet (Ex. A10) against three accused namely Jitendra Singh (husband), Shoor Singh (father-in-law) and Gangotri Devi (mother-in-law) of the deceased for their trial in respect of the offences punishable under section 498A, 304B IPC. 5. The Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of sessions for trial. On 03.07.2007, learned Sessions Judge, Pauri Garhwal, after hearing the parties, framed charge of offences punishable under section 498A, 304B IPC, and one punishable under section ¾ Dowry Prohibition Act, 1961. All the three accused pleaded not guilty, and claimed to be tried. On this, prosecution got examined P.W.1 Shankar Singh (complainant and father of the deceased), P.W. 2 Sarojini Devi (mother of the deceased), P.W. 3 Rajendra Singh (uncle of the deceased), P.W. 4 Dr. S.P.S. Negi (who conducted post mortem examination), P.W. 5 Girdhari Singh (cousin of the deceased), P.W.6 Sampurnand (Patwari who started the investigation) and P.W. 7 Ram Charan (who completed the investigation). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they pleaded that the evidence adduced against them is false. It is further stated by accused Jitendra Singh that his wife committed suicide due to the depression. It is further stated by taking plea of ali bi that he (Jitendra Singh) had gone to take firewood. Accused Shoor Singh also took similar plea and stated that he had gone to Lansdowne. It is further stated by accused Jitendra Singh that his wife committed suicide due to the depression. It is further stated by taking plea of ali bi that he (Jitendra Singh) had gone to take firewood. Accused Shoor Singh also took similar plea and stated that he had gone to Lansdowne. Accused Gangotri Devi also took plea of ali bi that she had gone for washing the clothes. In defence D.W.1 Rameshwari Devi, resident of Hitkandhala, P.W.2 Vidhay Devi another resident of said village, D.W.3 Shiv Singh, resident of Suradi and D.W.4 Vinod Baluni were got examined. D.W. 1 Rameshwari Devi stated that the deceased told her that if her husband did not take her she would die. D.W. 2 Vidhay Devi stated that deceased was happy in her in-laws house. She further told that she saw accused Shoor Singh going towards Lansdowne. D.W. 3 Shiv Singh told that on 17.01.2007, at about noon he saw smoke coming out from the house of Shoor Singh, and when he went there he saw none of the accused Jitendra Singh, Shoor Singh and Gangotri Devi in the house, and Neelam was lying in a burnt condition out side the shutter of the house. D.W. 4 Vinod Baluni, Village Pradhan, is the witness who has stated that inquest report was prepared in his presence and near the body there was kerosene zericane. He further told that smell of kerosene was coming from the dead body. 6. Before further discussion, this Court thinks it just and proper to mention the ante mortem injuries mentioned by P.W. 4 Dr. S.P.S. Negi, in the autopsy report (Ex. A3) after, post mortem examination on the body of the Neelam. The same is reproduced below: “Ante mortem injuries:- post burn erythene positive T(1)+ back below the lumber region entire buttocks. spared parts of burn injuries:- Both foot 4% pubic region 4% . whole body is burnt, black coloured charred and roasted. Smell of kerosene and burn. All burn injuries superficial and deep burn.” The medical officer Dr. S.P.S. Negi (P.W.4) has recorded in the autopsy report that shock due to ante mortem injuries was the cause of the death. Another Dr. Subhash Kumar has endorsed in the autopsy report (Ex. A3) that he agreed with the above opinion. P.W. 4 has stated that he conducted post mortem examination on the dead body of Neelam. S.P.S. Negi (P.W.4) has recorded in the autopsy report that shock due to ante mortem injuries was the cause of the death. Another Dr. Subhash Kumar has endorsed in the autopsy report (Ex. A3) that he agreed with the above opinion. P.W. 4 has stated that he conducted post mortem examination on the dead body of Neelam. He has further told that Dr. Subhash Kumar was also with him at the time of autopsy and signed the autopsy report. From the report of the team of two medical officers as mentioned above, it is proved on the record that Neelam died unnatural death on 17.01.2007. 7. Section 304B of Indian Penal Code provides that where the death of a woman is caused by any burns or bodily injury occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death. 8. P.W. 1 Shankar Singh (father of the deceased) has stated that his daughter Neelam got married to accused/appellant Jitendra Singh on 1/2 of March, 2006. He has further stated that after the marriage his daughter Neelam (deceased) told that her husband and in-laws make demand of one motor-cycle and Rs. 50,000/- as dowry but he took it lightly. The witness has further stated that after about ten months of marriage Neelam died. P.W. 1 Shankar Singh has further told that it was on 30.12.2006, his daughter gave birth to male child, and went to her in-laws place where also demand of dowry was made. It has been further narrated that on 04.01.2007, when he alongwith his wife had gone to the in-laws place of his daughter in the night his daughter told her mother that her in-laws are demanding Rs. 50,000/- and motor-cycle in the naming ceremony of the child. The witness further told that he had no means to fulfill the demand and he thought that every thing will get well with the passage of time. P.W. 1 Shankar Singh has proved FIR (Ex. A1) lodged by him after his daughter died of burn injuries. He is also witness of the inquest report. The witness further told that he had no means to fulfill the demand and he thought that every thing will get well with the passage of time. P.W. 1 Shankar Singh has proved FIR (Ex. A1) lodged by him after his daughter died of burn injuries. He is also witness of the inquest report. He was subjected to lengthy cross examination but nothing has come out which creates doubt in his testimony. 9. P.W. 2 Sarojini Devi (mother of the deceased) has corroborated the statement of P.W.1 Shankar Singh, and in substance narrated the same story. Not only this, P.W.3 Rajendra Singh (uncle of the deceased) has told that whenever Neelam came to her parental house accused Jitendra Singh used to make phone calls on his phone, and after he gave phone to his niece (Neelam) she looked frightened after the talks were over. The witness has further stated that when he asked Neelam as to why she was frightened she told about demand of dowry made by her husband. 10. From the statements of the above three witnesses it is established on the record that the demand of dowry was made by all the three accused namely Jitendra Singh (husband), Shoor Singh (father-in-law) and Gangotri Devi (mother in-law) from the deceased, and the demand could not be fulfilled. 11. Section 113 B of Indian Evidence Act, 1872, provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. 12. Shri Pankaj Purohit, learned counsel for the appellants argued that the prosecution has not proved factum of cruelty or harassment. Having gone through the evidence on record, I do not agree with the argument advanced on behalf of the appellants. Law nowhere requires that physical cruelty should be proved. What law requires in such cases is that the cruelty or harassment must be shown by the prosecution before the burden shifts on the accused. Demanding dowry as mentioned above from the person who has no means to pay, by itself cause mental cruelty and harassment of person from whom it is demanded. 13. What law requires in such cases is that the cruelty or harassment must be shown by the prosecution before the burden shifts on the accused. Demanding dowry as mentioned above from the person who has no means to pay, by itself cause mental cruelty and harassment of person from whom it is demanded. 13. It is also submitted on behalf of the appellants that conviction under section 304B IPC can be recorded only when proximity is shown between the demand of dowry and the death. This Court has considered the submission made on behalf of the appellants. In the opinion of this Court had there been long time between the marriage and the death and where the demand made much before the death, it could have been said that there is no proximity between the death and demand. But in the present case unnatural death of the bride has taken place within eleven months of the marriage and demand has been made on the day of naming ceremony of the newly born son. The son had born out of the wed lock on 30.12.2006, and naming ceremony was performed on 11.01.2007. Seven days thereafter Neelam died unnatural death as mentioned above. As such, in the present case there is proximity between the demand of the dowry and the unnatural death. 14. On behalf of the appellants it is also contended that Neelam committed suicide after a photograph (Ex. B1) was found, in which she is seen photographed with one boy Anusuyya Prasad. On scrutiny of the evidence on record, this Court finds that neither the negatives of the photograph is proved, nor the person who photographed was got examined, as such technically speaking the photograph does not stand proved on the record. Assuming for a moment that her (Neelam) photograph was found by the husband and same was shown to the deceased, there is nothing in the photograph for which the deceased could have committed suicide. She is simply standing with a boy in the photograph. Apart from this, the above plea of defence is inconsistent to the another plea taken by it that deceased had committed suicide as she had told to D.W.1 Rameshwari that she would commit suicide if she was not taken by her husband with him. The father-in-law (Shoor Singh) has stated in his statement under section 313 Cr.P.C., that the deceased was under depression. The father-in-law (Shoor Singh) has stated in his statement under section 313 Cr.P.C., that the deceased was under depression. Each plea is totally inconsistent to another. All the three accused have attempted to escape the liability by merely saying that they were not at home when the deceased suffered burn injuries. Whether they were at home or not is not relevant fact in the present case. The accused are not tried for commission of murder. What is required to be seen in the present case of dowry death is that whether the deceased died unnatural death after her harassment on account of non fulfillment of demand of dowry or not. Said fact is fully proved against the accused/appellants by the prosecution. 15. In view of the above discussion, so far as the conviction recorded by the trial court against the three accused/appellants Jitendra Singh, Shoor Singh and Gangotri Devi under section 304B, 498A IPC, are concerned, both the appeals are liable to be dismissed. However, considering the facts and circumstances of the case, this Court is of the view that the sentence of rigorous imprisonment for period of seven years under section 304B IPC, to each of the convicts/appellants would have met the ends of justice. Accordingly, the sentence awarded by the trial court is set aside and reduced to the sentence of rigorous imprisonment for a period of seven years under section 304B IPC. Only to that extent appeals stand allowed. Appellant Jitendra Singh is in jail. The period already spent in jail shall be adjusted against the sentence awarded by this Court. The conviction and sentence recorded under section 498A IPC, against the appellants is not interfered with and the same shall run concurrently with the sentence awarded under section 304B IPC. Let a copy of this judgment be sent to the Superintendent of the Jail concerned. So far as the appellants Shoor Singh and Gangotri Devi are concerned they are on bail. Their bail is cancelled. They shall surrender before the court concerned for serving out that remaining part of the sentence. Lower court record be sent back.