ORDER : Surendra Vikram Singh Rathore, J. Mr. Abdul Rafey Siddiqui, learned counsel for the appellants and Mrs. Smiti Sahai, learned Additional Government Advocate were heard at length. 2. Since both these appeals i.e. (Criminal Appeal No. 1137 of 2006-Smt. Dulla and Another v. State of U.P.) and (Criminal Appeal No. 1136 of 2006-Ram Kumar @ Teedi v. State of U.P.) arise out of a common judgment, therefore, the same are being disposed of together. 3. Criminal Appeal No. 1137 of 2006 has been preferred by the appellants-Smt. Dulla and Kendra Nath Tiwari and Criminal Appeal No.1136 of 2006 has been preferred by the appellant Ram Kumar @ Teedi challenging the judgment and order dated 19.04.2006 passed by learned IVth Additional Sessions Judge, Court No.8, Faizabad, in Sessions Trial No.469 of 2000, arising out of Case Crime No.106 of 2000, Police Station Kumarganj, District Faizabad, whereby all the appellants Smt. Dulla, Kendra Nath Tiwari and Ram Kumar @ Teedi were convicted and sentenced as under:- (i) Under Section 304-B IPC-Imprisonment for life and also with a fine of Rs. 10,000/- each with default stipulation of two years' additional imprisonment. (ii) Under Section 498-A IPC-One year's rigorous imprisonment and also with fine of Rs. 5000/- each, with default stipulation one year's additional simple imprisonment. (iii) Under Section 4 of D.P. Act-One year's rigorous imprisonment and also with fine of Rs. 5000/- each, with default stipulation of one year's additional imprisonment. 4. All the sentences were directed to run concurrently. 5. However, by the same judgment Smt. Gayatri Devi who happens to be married sister-in-law of the deceased was acquitted of all the charges levelled against her. 6. It is a case of dowry death. Appellant Kendra Nath Tiwari is the husband of the deceased and appellant Smt. Dulla is the mother-in-law (saas) of the deceased and appellant Ram Kumar @ Teedi is the father-in-law (Sasur) of the deceased. 7. In brief, the case of the prosecution was that the complainant Srikant Tiwari lodged an FIR at Police Station Kumarganj, District Faizabad on 14.07.2000 at 17:10 hours alleging therein that he had solemnized the marriage of his daughter Ambika @ Renu with the appellant Kendra Nath Tiwari on 19th December, 1993. After the marriage when his daughter came back from her matrimonial home to her parental home then she told that the family members were demanding scooter and Rs. After the marriage when his daughter came back from her matrimonial home to her parental home then she told that the family members were demanding scooter and Rs. 20,000/- cash in dowry. The complainant went to meet the appellant Kendra Nath Tiwari and inquired him about this demand then he was told by Kendra Nath Tiwari and his father that if scooter and Rs.20,000/- cash are not given in dowry then it will not be in his interest. On the request of the complainant they agreed for Vida of the deceased and thereafter again she was treated with cruelty in connection with the demand of dowry. The complainant tried to console his daughter and in the meantime she gave birth to three children. The elder one was daughter and the remaining two were sons. About one month prior to the incident he came for Vida of his daughter then appellant Kendra Nath Tiwari abused him and said that in case you did not fulfil the demand of dowry then your daughter shall be killed. On 11.07.2000 the complainant got the information from his relative Nar Narain Tiwari that your daughter has sustained burn injuries then he went along with Nar Narain Tiwari to the place of incident. By that time, the dead body was sent to the police station. In the FIR it was mentioned that the deceased has been killed by the convicted accused persons and also by Smt. Gayatri Devi. Prior to this information, appellant Ram Kumar @ Teedi had given an information of this incident at the police station on 11.07.2000 at 1.30 p.m., on the basis of which inquest proceeding was conducted and after completing the necessary formalities the dead body was sent for postmortem. The postmortem on the body of the deceased was conducted on 12.07.2000 at 3.15 p.m and following ante-mortem injuries were reported by the doctor:- (i) Superficial to deep burn present almost all over the body except both axilla at places cracks and fissures are present due to deep burn. Singeing of hair of skull present. A line of redness present in axilla. In the opinion of the doctor, the cause of death was shock and hemorrhage as a result of ante-mortem burn injuries. 8. Singeing of hair of skull present. A line of redness present in axilla. In the opinion of the doctor, the cause of death was shock and hemorrhage as a result of ante-mortem burn injuries. 8. After registration of the case, place of occurrence was inspected and after completing the investigation the charge-sheet was filed against three convicted accused appellants and the involvement of Smt. Gayatri Devi was not found correct. 9. The defence of the appellants was of their total denial and their false implication. Demand of dowry was denied. 10. In order to prove its case the prosecution has examined PW-1, Srikant Tiwari, the complainant of this case, father of the deceased, PW-2 Smt. Savitri Devi, mother of the deceased, PW-3 Dr. Hari Om Srivastava, who has conducted the postmortem on the body of the deceased, PW-4 R.P. Singh, C.O. The Investigating Officer of this case, PW-5 Sub Inspector S.S. Shastri Prasad Mishra, who on the information of appellant Ram Kumar @ Teedi had gone to the place of occurrence and had prepared inquest report, PW-6 S.I. Prem Shanker Singh who has prepared the chik report and G.D. of this case, PW-7 C.O. Girish Chandra Mishra, the second Investigating Officer of this case and he has also filed charge-sheet in this case, PW-8 Constable Uma Kant Dixit who has proved the chik report and G.D. of this case as secondary evidence. 11. After appreciating the evidence on record, the trial court has convicted the appellants as above, hence these instant appeals. 12. Submission of the learned counsel for the appellants was that the involvement of Smt. Gayatri Devi was found to be false. Appellant Smt. Gayatri Devi was aged about 70 years at the time of incident and appellant Ram Kumar @ Teedi was aged about more than 75 years at that time. An information of this incident was given by Ram Kumar @ Teedi at the police station and he himself remained present at the time of inquest proceedings and made no effort to abscond from there. Appellant Ram Kumar @ Teedi and Smt. Dulla were so old persons that they were not to be benefited by the demand of dowry or scooter. 13. Regarding appellant Kendra Nath Tiwari it has been argued that he does not intend to challenge the conviction of the appellant and has restricted his arguments only on the point of sentence. Appellant Ram Kumar @ Teedi and Smt. Dulla were so old persons that they were not to be benefited by the demand of dowry or scooter. 13. Regarding appellant Kendra Nath Tiwari it has been argued that he does not intend to challenge the conviction of the appellant and has restricted his arguments only on the point of sentence. It is submitted that learned trial court has imposed the maximum penalty of life imprisonment which ought not to have been inflicted on the appellant. Thus he has restricted his arguments only on the point of sentence on behalf of appellant Kendra Nath Tiwari (husband of the deceased). 14. Learned Additional Government Advocate has submitted that the judgment of learned trial court was absolutely valid and no interference is required by this Court and appropriate sentence is the discretion of the Court. He has admitted that in this case initial information of the death of the deceased was given by the appellant Ram Kumar @ Teedi. 15. In this case two witnesses of fact have been examined one PW-1 Srikant Tiwari and PW-2 his wife Smt. Savitri Devi who happens to be parents of the deceased. Smt. Gayatri Devi who has been acquitted by the impugned judgment was summoned by the trial court to face trial in exercise of power under Section 319 Cr.P.C. Perusal of the evidence of the two eye witnesses shows that the complainant Srikant Tiwari got the information of this incident on that very day through Nar Narain Tiwari who happens to be devar of his younger daughter. Thereafter he went to the village of the incident Gorwal where he was told by the villagers that the dead body has been sent to police station. He went to police station Kumarganj wherefrom the dead body had already been sent for postmortem. He has also stated that after postmortem when he was busy in the preparation of the funeral of the deceased then accused persons threw the dead body in the river stream and due to which he could not perform the funeral of his daughter and came back to his house. Next day he again went to the house of the appellants where he found the three children (two sons and one daughter of the deceased) were crying in the house. The appellants were not there so he brought his daughter's children to his house. Next day he again went to the house of the appellants where he found the three children (two sons and one daughter of the deceased) were crying in the house. The appellants were not there so he brought his daughter's children to his house. PW-1 has admitted that on the day of incident when he went to the police station he did not lodge the FIR because he considered it proper to first be satisfied as to how this incident has taken place. Subsequently, the FIR of this case was lodged on 14.07.2000 but no explanation of delay was furnished in the FIR. 16. In order to explain delay in the FIR, the complainant has developed a story that his wife inquired the elder daughter of Kendra Nath Tiwari as to how this incident has taken place then she told her that the appellant Smt. Gayatri Devi and Smt. Dulla were beating the deceased then her mother pushed Kendra Nath Tiwari due to which he fell down and her mother ran up stairs wherefrom she was dragged by Smt. Gayatri Devi. Thereafter she was again beaten by these persons due to which she died. After the death of the deceased, appellant Ram Kumar @ Teedi was called and the dead body was set at fire. Similar statement has been given by PW-2 Savitri Devi. PW-1 has admitted that after getting this information about the incident he went to lodge the FIR. It is really strange to note that none of the aforementioned facts were mentioned in the FIR. It is further surprising to note that even during investigation no such statement was given by any of the two witnesses regarding this incident. All the story was narrated by Km. Poonam (daughter of appellant Kendra Nath Tiwari). It is further surprising to note that no effort was made by the prosecution to examine Km. Poonam as a witness. Thus the evidence of these two witnesses on the point, as to how the incident has taken place, was only hearsay evidence and the direct evidence of Km. Poonam as claimed by these two witnesses, was withheld. So the evidence as to how the incident has taken place, as stated by these two witnesses was virtually hearsay evidence. Thus the evidence of these two witnesses on the point, as to how the incident has taken place, was only hearsay evidence and the direct evidence of Km. Poonam as claimed by these two witnesses, was withheld. So the evidence as to how the incident has taken place, as stated by these two witnesses was virtually hearsay evidence. Even according to this version the appellant Ram Kumar @ Teedi was called inside the house only after the death of the deceased and the role assigned to Smt. Gayatri Devi (sister-in-law) of the deceased was similar to that assigned to appellant Smt. Dulla. Smt Gayatri has already been acquitted of the charges levelled against her. 17. It is pertinent to mention that the aforementioned story which the parents of the deceased have disclosed also does not find support from the medical evidence. PW-3 Dr. Hari Om Srivastava, has not reported any postmortem burn injury on the body of the deceased. The only question put to this witness in cross-examination was that such injuries could have been caused if suicide is committed after closing the door. There is yet another aspect which also shows that the parents of the deceased were not involved in the demand of dowry. It has come in evidence of PW-1 that on the last occasion when Hari Om Tiwari came for vida of the deceased then he went to his working place in railways. The complainant requested him to come to his house for Vida but he told him that his family members have taken a word from him that he will not go to his house. Thereafter the complainant Srikant Tiwari made arrangement of his stay in the parental house of his wife where he stayed in the night and on the next day the Vida took place. During this period the complainant asked Hari Om as to why he is pressing for demand of dowry of scooter and Rs. 20,000/- cash while he is a prosperous man and has only one son. Then the reply of Hari Om as told by PW-1 was that he has become very old and is unable to move. During this period the complainant asked Hari Om as to why he is pressing for demand of dowry of scooter and Rs. 20,000/- cash while he is a prosperous man and has only one son. Then the reply of Hari Om as told by PW-1 was that he has become very old and is unable to move. About the demand of dowry and he has replied that only Kendra Nath Tiwari knows about it and he has come for the last time for Vida of his daughter-in-law and thereafter the matter will be settled between you and Kendra Nath Tiwari. Thus this reply of Ram Kumar @ Teedi shows that virtually he was very weak and he was not making any demand of dowry himself but it was the demand of Kendra Nath Tiwari which was conveyed by him unwillingly. Therefore, in view of these circumstances, appellants Ram Kumar @ Teedi and Smt. Dulla, in the peculiar facts and circumstances of the case, becomes entitled for the benefit of doubt. 18. Though the learned has not challenged the conviction of the appellant Kendra Nath Tiwari but in spite of being the court of first appeal, we have gone through the evidence of witnesses on record. 19. It is a case of dowry death. Before proceeding further we would like to discuss the necessary ingredients to constitute an offence under Section 304-B IPC. Hon'ble Apex Court in the case of Rajinder Singh v. State of Punjab reported in (2015) 6 SCC 477 has held in para 9 which is being reproduced as under:- "9. The ingredients of the offence under Section 304-B IPC have been stated and restated in many judgments. There are four such ingredients and they are said to be: (a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances; (b) such death must have occurred within seven years of her marriage; (c) Soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (d) such cruelty or harassment must be in connection with the demand for dowry." 20. Keeping in view the evidence of the witnesses, it is established that the deceased died an unnatural death which is proved by her medical evidence. Keeping in view the evidence of the witnesses, it is established that the deceased died an unnatural death which is proved by her medical evidence. It is also established that she died because of burn injuries within seven years of her marriage. Appellant Kendra Nath Tiwari admittedly is the husband of the deceased. The evidence of the witnesses of fact clearly establishes the demand of dowry and consequential ill treatment. Thus the fact that the deceased died an unnatural death within seven years of her marriage, she was treated with cruelty in connection with the demand of dowry soon before her death also stands established. Thus all the ingredients to constitute an offence of dowry death stands proved with regard to appellant Kendra Nath Tiwari. Hence, so far as the conviction of the appellant Kendra Nath Tiwari is concerned, he cannot escape his liability. 21. So far as the accused Smt. Dulla and Ram Kumar @ Teedi is concerned, admittedly, both of them are very old at present, they must be aged about 80 years or above. Ram Kumar @ Teedi has himself given an information of this incident to the police before the FIR was lodged against them. He himself remained present at the place of occurrence and was a witness in inquest. The allegation of demand of scooter and Rs.20,000/- cash was of such nature which would have benefited the husband only and not to these old persons. Therefore, their case become distinguishable from the case of the husband and they may be granted the benefit of doubt as discussed in the earlier part of the judgment. 22. Now the question of appropriate sentence regarding appellant Kendra Nath Tiwari arises. 23. On the point of sentence we would like to refer some of the pronouncement of Hon'ble Apex Court. In the case of Hem Chand v. State of Haryana reported in (1994) 6 SCC 727 , in paragraph 7 of the judgment Hon'ble Apex Court has held as under:- "Now coming to the question of sentence, it can be seen that Section 304B I.P.C. lays down that: "Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A reading of Section 304B I.P.C. would show that when a question arises whether a person has committed the offence of dowry death of a woman that all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304B I.P.C. also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied." Hon'ble the Apex Court in the case of G.V. Siddaramesh v. State of Karnataka reported in (2010) 3 SCC 152 . In this case, on the point of sentence, in paragraph 30 of the judgment has held as under:- "On the point of sentence, learned Counsel for the appellant pointed out that the appellant is in jail for more than six years. The appellant was young at the time of incident and therefore, the sentence awarded by the trial court and confirmed by the High Court may be modified. The appellant was young at the time of incident and therefore, the sentence awarded by the trial court and confirmed by the High Court may be modified. In so far as sentencing under the section is concerned, a three Judge Bench of this Court in the case of Hemchand v. State of Haryana ( (1994) 6 SCC 727 ) has observed that: "Section 304B merely raises a presumption of dowry death and lays down that the minimum sentence should be 7 years, but it may extend to imprisonment for life. Therefore, awarding the extreme punishment of imprisonment for life should be used in rare cases and not in every case." Keeping in view the facts and circumstances of the case, this Court reduced the sentence from life imprisonment awarded by the High Court to 10 years R.I on the above principle." Before parting with the judgment we would like to mention that no separate sentence need to be passed for the offence under Section 498-A IPC where the accused is convicted for the offence under Section 304-B IPC because the offence under Section 498-A IPC is included in the offence under Section 304-B IPC. 24. The trial court has also awarded sentence for the offence under Section 498-A I.P.C. but the offence under Section 498-A I.P.C. is included in the offence under Section 304-B I.P.C. So there was no need to pass separate sentence under Section 498-A I.P.C. It has been so held by Hon'ble the Apex Court in the case of Smt. Shanti and another v. State of Haryana reported in (1991) 1 SCC 371 . Last lines of paragraph 5 reads as under:- “5......... But from the point of view of practise 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 498-A in view of the substantive sentence being awarded for the major offence under Section 304-B.” 25. Thus keeping in view the aforementioned legal position, we are of the considered view that sentence of 10 years rigorous imprisonment would meet the ends of justice so far as appellant Kendra Nath Tiwari, husband of the deceased is concerned. 26. Thus keeping in view the aforementioned legal position, we are of the considered view that sentence of 10 years rigorous imprisonment would meet the ends of justice so far as appellant Kendra Nath Tiwari, husband of the deceased is concerned. 26. In view of the discussion made above, the Criminal Appeal No.1137 of 2006 preferred by appellant Smt. Dulla (Saas) deserves to be allowed and is hereby allowed. Appellant Smt. Dulla is acquitted of all the charges levelled against her. She is on bail. Her bail is cancelled and sureties are discharged. She be set at liberty. She need not to surrender. 27. This Criminal Appeal No.1137 of 2006 deserves to be partly allowed and is hereby partly allowed with regard to appellant no.2 Kendra Nath Tiwari (husband). Conviction of the appellant Kendra Nath Tiwari for the offence under Section 304-B IPC is hereby confirmed but the sentence of imprisonment for life is hereby reduced to a period of ten years only. His conviction under Section 498-A IPC is also hereby confirmed, however, no separate sentence is being passed for the offence under Section 498-A IPC. 28. Conviction and sentence of appellant under Section 4 of Dowry Prohibition Act inflicted by the trial court is also hereby confirmed. Appellant Kendra Nath Tiwari is in custody. He shall serve out his sentence as modified by this Court. The period already undergone by the appellant Kendra Nath Tiwari shall be set off in his substantive sentence in accordance with the provision of Section 428 Cr.P.C. 29. All the sentences of appellant Kendra Nath Tiwari shall run concurrently. 30. Criminal Appeal No.1136 of 2006 preferred by the appellant Ram Kumar @ Teedi (Sasur) deserves to be allowed and is hereby allowed. The appellant Ram Kumar @ Teedi is acquitted of all the charges levelled against him. He is on bail. His bail is cancelled and sureties are discharged. He need not to surrender. He be set at liberty. 31. Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance. Order accordingly.