JUDGMENT Per: Hon’ble Servesh Kumar Gupta, J. The challenge herein is to the judgment and order of conviction dated 01/02.02.2010 rendered by learned Additional Sessions Judge, Haldwani, District Nainital in S.T. No.34 of 2007, State Vs. Raju & others, whereby the accused/appellant was sentenced to undergo imprisonment for twelve years’ u/s 304-B IPC, two years’ S.I. u/s 498-A IPC and one year’s S.I. u/s 4 of Dowry Prohibition Act nay certain amounts of fine. 2. An FIR was lodged by PW1 Bhagwan Ram on 17.9.2006 stating that his sister Rekha was married with the appellant/ accused six years’ ago as per Hindu rituals. Various items including gold/silver jewellery were given in dowry as per status but the accused and his family members were not satisfied with the same, and soon after the marriage, she was subjected to various atrocities and maltreatment at the hands of accused. Persuasions too were made on the part of complainant but the same could not yield any result. Rather, a demand of Rs.50,000/- in cash besides a motorcycle was continued. On 31.8.2006, accused/appellant along with 2 his wife came at the house of complainant where he demanded dowry and on non-fulfillment of the same, he started beating his wife at her parental house itself. On being persuaded, accused brought the victim on the next day but he gave a threat that in case the demand is not satisfied within ten days, they would not find Rekha alive. On the date of report, two boys came at complainant’s house and informed that Rekha has died. On this information, complainant along with his family members and villagers came at her in-laws house where she was found dead. Thereafter, the police came into motion. The inquest report (Ex.Ka-3) was prepared wherein it was stated that the dead body was found in the house of accused/ appellant. The matter was investigated which resulted into submission of a chargesheet against the accused/appellant, as also his family members u/s 498-A/304-B IPC and Section 3/4 of Dowry Prohibition Act. The charge was subsequently levelled against the accused persons. 3. Prosecution, in support of its case, examined PW1 Bhagwan Ram (complainant), PW2 Kundan Ram (uncle of deceased), PW3 Laxman Ram (deceased’s cousin brother), PW4 Dr. M.S. Martoliya (who conducted autopsy), PW5 Head Moharrir Ram Singh, PW6 Harvir Singh (Tehsildar at the relevant time) and PW7 D.P. Juyal (I.O. of the case). 3. Prosecution, in support of its case, examined PW1 Bhagwan Ram (complainant), PW2 Kundan Ram (uncle of deceased), PW3 Laxman Ram (deceased’s cousin brother), PW4 Dr. M.S. Martoliya (who conducted autopsy), PW5 Head Moharrir Ram Singh, PW6 Harvir Singh (Tehsildar at the relevant time) and PW7 D.P. Juyal (I.O. of the case). Subsequent thereto, the statements of accused were recorded u/s 313 Cr.P.C. 4. The trial court, vide the impugned judgment, recorded the order of conviction only for the accused/appellant whereas other accused were not found guilty by the trial court 5. We have heard learned counsel for the parties and perused the material on record. At this stage, we deem it just and proper to mention the ante-mortem injuries found on the person of deceased, recorded by PW4 Dr. M.S. Martoliya which reads as under: - 1. “Ligature mark is situated above thyroid cartilage between the larynx and chin directing obliquely upwards following the line of lower jaw and interrupted at the back. There is a lunatic impression behind the right ear at the mastoid process. The mark is a grove with pale hard leathery base with bluish margin, mark is widest on anterior aspect width 3.0 cms and has narrowed towards periphery, on exploration clotted blood present in the sub-cut tissues. 2. Abraded contusion over 2nd, 3rd, 4th and 5th toe of right foot. On exploration clotted blood present in the sub cut tissue. 3. Abraded contusion of size 2.0 x 1.0 cm on anterior aspect of right knee. 4. Abraded contusion of size 1.0 x 1.0 cm on anterior aspect of left knee. Cause of death – Asphyxia due to hanging.” 6. PW1 Bhagwan Ram is the complainant and brother of deceased. He has proved the averments made in the body of F.I.R. PW2 Kundan Ram is the uncle of deceased whereas PW3 is Laxman Ram, cousin brother of deceased. PW2 and PW3 both have also corroborated the prosecution story as regards the factum of marriage and subsequently the demand of dowry made by the accused/appellant before them on 31.08.2006. 7. PW5 is Head Moharrir Ram Singh who prepared the Chik report and made entry in G.D. 8. PW6 Harbir Singh, who was posted as Tehsildar-Magistrate on the relevant date. He has prepared the inquest report after doing necessary formalities. 9. 7. PW5 is Head Moharrir Ram Singh who prepared the Chik report and made entry in G.D. 8. PW6 Harbir Singh, who was posted as Tehsildar-Magistrate on the relevant date. He has prepared the inquest report after doing necessary formalities. 9. PW7 C.O. Devi Prasad Juyal is the Investigating Officer of the case, who submitted chargesheet against the accused on completion of investigation. 10. On perusal of the evidence on record, it transpires that this is a case of dowry death wherein the victim has died within six years of her marriage at her in-laws house in abnormal circumstances. At this stage, it is pertinent to mention Section 304-B of the IPC as also Section 113-B of Indian Evidence Act, which read as under: - [304B. Dowry Death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation – For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). [113-B of Evidence Act- Presumption as to dowry death- 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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation – For the purposes of this section “dowry death”, shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).] 11. Now, from the evidence, as above discussed, it is proved that the marriage of victim was solemnized with the accused/appellant Raju in the month of April, 2000 and soon after the marriage, on account of non-fulfillment of dowry demand, she was subjected to various atrocities and tormented attitude at the hands of the accused/appellant. Now, from the evidence, as above discussed, it is proved that the marriage of victim was solemnized with the accused/appellant Raju in the month of April, 2000 and soon after the marriage, on account of non-fulfillment of dowry demand, she was subjected to various atrocities and tormented attitude at the hands of the accused/appellant. Various efforts were made to reconcile the matter but those could not bring change in the behaviour of the accused/appellant. It has also been established by the prosecution that in a family function being organized at the house of bride on 31.8.2006, accused/appellant along with his wife came there, and at that place also, the accused/appellant repeated his demand of dowry from her parents, but when the same was not complied with, the accused started beating his wife even at her parental house. Though the accused, on being persuaded, brought his wife on the next day, but he specifically threatened the victim’s family that in case the dowry of Rs.50,000/- along with a motorcycle, in dowry, is not satisfied within ten days, then they would not be able to see Smt. Rekha (deceased). Subsequently thereafter on 17.9.2006, two boys came at the house of reporter and informed him that his sister has died. PW2 Kundan Ram and PW3 Laxman Ram have also corroborated the entire prosecution version in their deposition. PW4 Dr. M.S. Martoliya, who conducted the autopsy on the person of deceased, has also opined the cause of death as ‘Asphyxia due to hanging’, which is also known as ‘unnatural death’. 12. Thus, on the basis of evidence as stated above, it can be well derived that it is a case of dowry death wherein the death of victim was caused under abnormal circumstances, within seven years of her marriage and soon before her death, she was subjected to cruelty at the hands of her husband in connection with demand of dowry, and as such, it can safely be inferred that that the accused/appellant has caused the dowry death of victim. 13. 13. Section 113-B of the Evidence Act also significantly enlightens here to determine whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand of dowry, the Court shall presume that such person had caused the dowry death. Although the presumption u/s 113-B of the Evidence Act is rebuttable but having a careful look upon the testimony of the defence witnesses advanced in favour of the accused, we are not satisfied that the appellant had been successful in rebutting the aforesaid presumption. DW1 Sunita Kashyap, DW2 Laxmi Giri and DW3 Ram Dularey were simply the tenants in the house of accused. So mere narration by them that the appellant had good relations with his wife, is not enough to rule out the possibility of negation of demand of dowry soon before the death of victim at her matrimonial house. 14. That apart, it can also significantly be taken note of that the victim, at the age of 26 years, died in the house of her husband (appellant), and in the inquest report (Ex.Ka-3), the persons who were present and put their signatures on that report, opined that the death of the victim took place due to smothering. This opinion also concurred by the Magistrate, present at the spot, and the same has also been proved by PW4 Dr. M.S. Martoliya (who conducted autopsy). He has also opined that the death had been caused on account of asphyxia due to hanging. Besides, ligature marks also appeared to be ante-mortem one. Thus, as per the provision of Section 106 of the Evidence Act, it was incumbent upon the appellant Raju to speak as to what was the cause of death of his wife in his house under abnormal circumstances. But he has utterly failed to offer any explanation, far less any convincing one in this regard. Now, in light of this discussion, as also on a cumulative reading of the facts and circumstances of the case, we find that the trial court was perfectly justified in recording the conviction of accused/appellant u/s 304-B IPC. 15. But he has utterly failed to offer any explanation, far less any convincing one in this regard. Now, in light of this discussion, as also on a cumulative reading of the facts and circumstances of the case, we find that the trial court was perfectly justified in recording the conviction of accused/appellant u/s 304-B IPC. 15. Similarly, the offences punishable u/s 498-A IPC r/w Section 4 of the Dowry Prohibition Act are also specifically made out against the accused in view of the fact that the accused/appellant directly demanded dowry of Rs.50,000/- besides a motorcycle from the parents of deceased, and when the same remained unfulfilled, she was subjected to cruelty by her husband (present appellant). 16. Learned counsel for the appellant lastly sought clemency of this Court for reduction of sentence in view of the fact that the appellant is in jail eversince the date of his arrest i.e. 18.09.2006 and further, that he is also required to look after his adolescent growing daughter. 17. After considering the entire facts and circumstances of the case, we dismiss this appeal insofar as the holding of conviction by the trial court is concerned. But, at the same time, considering the sundry plights of the appellant, including career of his minor growing daughter, we reduce the quantum of sentence u/s 304-B IPC from 12 years imprisonment to that of 10 years. However, the punishment awarded under rest of the offences is left intact. All the sentences, as directed by trial court, shall run concurrently. The period already spent by the accused/appellant in jail shall be adjusted from this punishment after verifying the same from the records. 18. Let a copy of this order along with the lower court record be sent to the court concerned for compliance.