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2017 DIGILAW 409 (UTT)

State of Uttarakhand v. Prem Ram

2017-07-26

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. 1. This appeal is directed against the judgment dated 25.06.2012, rendered by learned Sessions Judge, Almora in Sessions Trial No. 02 of 2010, whereby the respondents- accused, who were charged with and tried for the offences under Section 302, 498-A, 304-B of IPC and 3/4 of Dowry Prohibition Act have been acquitted. 2. The case of the prosecution, in a nutshell, is that Exhibit Ka-1 was lodged by PW-1 Shyam Lal before the Naib Tehsildar, Bhikiyasen, District Almora with the allegations that his sister Smt. Deoki Devi was married to accused Girish Chandra on 05.06.2009 as per Hindu customs and rites. His sister’s husband Girish Chandra, father-in-law Prem Ram, mother-in-law Pushpa Devi and sister-in-law Tara were harassing her for brining insufficient dowry. Whenever she used to come to her parental house, she used to complain to PW-1 Shyam Lal about their cruelty. His sister’s in-laws were demanding Rs. 1.50 lacs. On 24.11.2009, her father-in-law and sister-in-law committed her murder. The information was supplied to PW-1 Girish Chandra by his sister’s father-in-law on 24.11.2009. He found his sister’s body in burnt condition. The FIR was registered. The dead body was sent for postmortem examination. According to postmortem report, the deceased died to asphyxia due to ante mortem injuries. The doctor has also noticed superficial to deep burn injuries over her right upper arm, superficial to deep burns and few blisters over the lower part of the whole neck, hair were also burnt. He has also noticed compressed abrasion over upper part of neck. The investigation was carried out and the challan was put up after completing all the codal formalities. The prosecution has examined as many as four witnesses in its support. The statements of the accused were also recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. The accused were acquitted. Hence, this appeal. 3. Learned State counsel has vehemently argued that the prosecution has proved its case beyond reasonable doubt. Learned counsel on behalf of the respondents-accused has supported the judgment dated 25.06.2012. 4. We have heard learned counsel for both the parties and perused the judgment and record carefully. 5. PW-1 Shyam Lal has testified that his sister Devki Devi’s marriage was solemnized on 05.06.2009 with the accused Girish Chandra. His sister was harassed for bringing insufficient dowry. His sister’s father-in-law, husband, mother-in-law and sister-in-law were harassing her. 4. We have heard learned counsel for both the parties and perused the judgment and record carefully. 5. PW-1 Shyam Lal has testified that his sister Devki Devi’s marriage was solemnized on 05.06.2009 with the accused Girish Chandra. His sister was harassed for bringing insufficient dowry. His sister’s father-in-law, husband, mother-in-law and sister-in-law were harassing her. They have demanded Rs. 1.50 lacs. They used to administer beatings to his sister. Whenever his sister used to come to her parental house, she narrated the incident over to them. They used to persuade her to go to her matrimonial home. He received the information about the illness of his sister. He went to the spot at 9:00 AM. He saw that the face and hair of his sister were burnt. The saree was hanging from the tree. Tehsildar and Naib Tehsildar reached the spot. The dead body was sent for postmortem examination. In his cross-examination, he has denied the suggestion that accused Girish Chandra was at Chandigarh on 24.11.2009. He has spent Rs. 2-2.5 lacs in the marriage of his sister. He raised the loan. He was again re-examined. The witness was recalled on 23.03.2012. After the alteration of charge in his examination-in-chief, he has deposed that on 23.03.2012, he has not seen his sister being killed by the accused. The accused have never demanded any dowry. He has lodged the report at the instance of the people. He was declared hostile and cross-examined by learned Public Prosecutor. He has admitted his statement earlier recorded by learned District Govt. Counsel. He has deposed that the accused have never asked for dowry. Accused Girish Chandra was at Chandigarh on 23.11.2009. Accused Pushpa Devi and Tara were also not at their home. Only accused Prem Ram was at his home. The accused have not killed his sister. His sister remained sick. His sister has committed suicide. He never suspected Tara Devi, Pushpa Devi and Girish Chandra. 6. PW-2 Pushpa Devi is the mother of the deceased Devki Devi. According to her, the marriage of her daughter was solemnized on 05.06.2009 with accused Girish Chandra. Her daughter’s father-in-law Prem Ram, mother-in-law Pushpa Devi, husband Girish Chandra and sister-in-law Tara used to treat her daughter with cruelty. They were demanding Rs. 1.50 lacs. Her daughter was starved. 6. PW-2 Pushpa Devi is the mother of the deceased Devki Devi. According to her, the marriage of her daughter was solemnized on 05.06.2009 with accused Girish Chandra. Her daughter’s father-in-law Prem Ram, mother-in-law Pushpa Devi, husband Girish Chandra and sister-in-law Tara used to treat her daughter with cruelty. They were demanding Rs. 1.50 lacs. Her daughter was starved. She has denied the suggestion on her cross-examination that Girish Chandra, Pushpa Devi and Tara were not at home on 23.11.2009. She was also reexamined on 23.03.2012. She has deposed that the accused have not killed her daughter by pouring oil and putting her on fire. She was also declared hostile and cross-examined by learned Public Prosecutor. In her cross-examination, she has deposed that she did not remember that her daughter was killed due to dowry. In her cross-examination by learned Defence counsel, she has deposed that the accused have never asked for dowry. On 23.11.2009, Pushpa Devi and Tara were not at home. His son-in-law Girish Chandra was at Chandigarh. She did not suspect the accused. Her daughter has committed suicide. 7. PW-3 Radha Devi is the sister-in-law of deceased. According to her, the accused have never raised any demand of dowry. She was declared hostile and cross-examined by learned District Govt. Counsel. In her cross-examination, she has deposed that the deceased has never told her about the demand of dowry raised by the accused-respondents. 8. PW-4 Ram Lal has deposed that he has no knowledge about the deceased. He has further deposed that Prem Ram had come to him and told him that Devki Devi has committed suicide by hanging from the tree. He went to the spot. He has not seen Devki Devi hanging. He has seen her lying in the land. Her hair were burnt. He was cross-examined by learned District Govt. Counsel. In his cross-examination, he has deposed that on the date of incident only Tara and Prem Ram were at home. Girish Chandra and his mother were not at home. 9. In this case, the Investigating Officer as well as doctor (who has conducted the postmortem examination) have not been examined. 10. PW-1 Shyam Lal has lodged the FIR and has categorically stated therein that the accused raised a demand of Rs. 1.50 lacs. His sister was treated with cruelty by them. 9. In this case, the Investigating Officer as well as doctor (who has conducted the postmortem examination) have not been examined. 10. PW-1 Shyam Lal has lodged the FIR and has categorically stated therein that the accused raised a demand of Rs. 1.50 lacs. His sister was treated with cruelty by them. In his examination-in-chief, he has specifically deposed that his sister’s father-in-law Prem Ram, husband Girish Chandra, mother-in-law Pushpa Devi and sister-in-law Tara were harassing his sister. They were demanding Rs. 1.50 lacs. His sister used to come to his parental house and narrate them that the accused were demanding dowry. They used to persuade her to go back to her matrimonial house. He received the information that his sister was ill. When he went to the spot, he saw the dead body of his sister. The face and hair were burnt. A saree was hanging from the tree. He has denied the suggestion that Girish Chandra was not at home on 24.11.2011. However, surprisingly, when he was again cross-examined, he did not support the prosecution and has deposed that he has not seen his sister being killed by the accused. According to him, the accused have never raised any demand of dowry. He was declared hostile and cross-examined, as noticed hereinabove. He has deposed that his sister was not killed by the accused. His sister has committed suicide. Similarly, PW-2 Pushpa Devi has categorically deposed that the accused were demanding dowry from her daughter. She used to persuade her daughter to go back to her in-laws house. Her daughter used to come her house weeping. She has denied the suggestion that Pushpa Devi and Tara were not at home on 24.11.2009. She was again re-examined on 23.03.2012 and has taken a U-turn and deposed that the accused have not burnt her daughter by pouring oil on her. She was declared hostile and cross-examined. In her cross-examination, she has stated that her son-in-law Girish Chandra was at Chandigarh. Accused Pushpa Devi and Tara were also not at their home. Her daughter has committed suicide. 11. PW-3 Prem Singh has not supported the case of the prosecution. PW-4 Ram Lal, though, has not supported the case of the prosecution but has admitted that Prem Ram has told him that deceased Devki Devi has committed suicide by hanging in a tree. He has noticed that the hair of the deceased burnt. Her daughter has committed suicide. 11. PW-3 Prem Singh has not supported the case of the prosecution. PW-4 Ram Lal, though, has not supported the case of the prosecution but has admitted that Prem Ram has told him that deceased Devki Devi has committed suicide by hanging in a tree. He has noticed that the hair of the deceased burnt. According to him also, Tara and Prem Ram were at home but Girish Chandra and Pushpa Devi were out of station. 12. In this case, PW-1 Shyam Lal, PW-2 Pushpa Devi, PW-3 Radha Devi and PW-4 Ram Lal have been won over by the accused. In the earlier statements of PW-1 Shyam Lal and PW-2 Pushpa Devi, they have supported the case of the prosecution. They have categorically deposed that the accused were demanding dowry and the deceased was killed by the accused. Similarly, PW-4 Ram Lal has seen that the hair of deceased was burnt but doctor has noticed superficial to deep burn injuries on the body of the deceased. According to postmortem report, the deceased has died due to ante mortem injuries. It has come in the statement of PW-4 Ram Lal that accused Prem Ram has come to him and told that the deceased has committed suicide by hanging. He had also seen that her hair was burnt. 13. PW-1 Shyam Lal has also deposed that when he went to the house of his sister’s in-laws, he has noticed that the face and hair of his sister were burnt. 14. It is a case where the accused have won over and improperly induced to change the stand and give false testimony. It is also the case of defective investigation. The doctor, who has conducted the postmortem examination, was not examined. Even, the Investigating Officer was not examined. 15. PW-1 Shyam Lal and PW-2 Pushpa Devi have completely changed their stand in cross-examination and exculpated accused, as compared to their earlier statements in which they have inculpated accused. The statement of PW-1 Shyam Lal was earlier recorded on 31.07.2010 and he was re-examined on 23.03.2012. Similarly, PW-2 Pushpa Devi was examined on 31.07.2010 and thereafter, reexamined on 23.03.2012. In the meantime, between 31.07.2010 to 23.03.2012, the accused have won over the material witnesses. 16. The statement of PW-1 Shyam Lal was earlier recorded on 31.07.2010 and he was re-examined on 23.03.2012. Similarly, PW-2 Pushpa Devi was examined on 31.07.2010 and thereafter, reexamined on 23.03.2012. In the meantime, between 31.07.2010 to 23.03.2012, the accused have won over the material witnesses. 16. Their Lordships of the Hon’ble Supreme Court in 2013 (7) SCC 125 in the case of Akil @ Javed vs. State (NCT of Delhi), have explained that when the witness completely changes stand in cross-examination and exculpates accused, as compared to chief examination. Their Lordships have held as under:- “20. In the course of cross-examination PW-20 made a different statement as regards the identity of the appellant by stating that he was tutored by Inspector Rajinder Gautam who met him before his examination-in-chief. In the light of the said development it was contended on behalf of the appellant that irrespective of the crime as described by the eyewitnesses taken place on the fateful day, there was absolutely no legally acceptable evidence to connect the appellant with the crime. The learned counsel relied upon Section 155 of the Evidence Act in support of his submission. The learned counsel also relied upon the decisions in Paramjeet Singh and Suraj Mal. We can also refer to some of the decisions in Kunju Muhammed vs. State of Kerala, Nisar Khan vs. State of Uttaranchal, Mukhtiar Ahmed Ansari vs. State (NCT of Delhi) and Raja Ram vs. State of Rajasthan in respect of the said proposition of law. 33. We have referred to the above legal position relating to the extent of reliance that can be placed upon a hostile witness who was not declared hostile and in the same breath, the dire need for the courts dealing with cases involving such a serious offence to proceed with the trial commenced on day-to-day basis in de die in diem until the trial is concluded. We wish to issue a note of caution to the trial court dealing with sessions cases to ensure that there are well-settled procedures laid down under the Code of Criminal Procedure as regards the manner in which the trial should be conducted in sessions cases in order to ensure dispensation of justice without providing any scope for unscrupulous elements to meddle with the course of justice to achieve some unlawful advantage. In this respect, it is relevant to refer to the provisions contained in Chapter XVIII of the Criminal Procedure Code where under Section 231 it has been specifically provided that on the date fixed for examination of witnesses as provided under Section 230, the Sessions Judge should proceed to take all such evidence as may be produced in support of the prosecution and that in his discretion may permit cross-examination of any witnesses to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination. 39. In the decision in Lt. Col. S.J. Chaudhary vs. State (Delhi Administration) this Court in paras 2 and 3 has held as under: (SCC pp. 723-724) “2. We think it is an entirely wholesome practice for the trial to go on from day to day. It is most expedient that the trial before the Court of Session should proceed and be dealt with continuously from its inception to its finish. Not only will it result in expedition, it will also result in the elimination of manoeuvre and mischief. It will be in the interest of both the prosecution and the defence that the trial proceeds from day to day. It is necessary to realise that sessions cases must not be tried piecemeal. Before commencing a trial, a Sessions Judge must satisfy himself that all necessary evidence is available. If it is not, he may postpone the case, but only on the strongest possible ground and for the shortest possible period. Once the trial commences, he should, except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded. 3. We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his advocate is finding it difficult to attend the court from day to day. It is the duty of every advocate, who accepts the brief in a criminal case to attend the trial from day to day. We cannot overstress the duty of the advocate to attend to the trial from day to day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend. The criminal miscellaneous petition is, therefore, dismissed.” (Emphasis added) 42. We cannot overstress the duty of the advocate to attend to the trial from day to day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend. The criminal miscellaneous petition is, therefore, dismissed.” (Emphasis added) 42. Keeping the various principles, set out in the above decisions, in mind when we examine the situation that had occurred in the case on hand where PW-20 was examined-in-chief on 18.9.2000 and was cross-examined after two months i.e. on 18.11.2000 solely at the instance of the appellant’s counsel on the simple ground that the counsel was engaged in some other matter in the High Court on the day when PW-20 was examined-in-chief, the adjournment granted by the trial court at the relevant point of time only discloses that the court was oblivious of the specific stipulation contained in Section 309 CrPC which mandates the requirement of sessions trial to be carried on a day-to-day basis. The trial court has not given any reason much less stated any special circumstance in order to grant such a long adjournment of two months for the cross-examination of PW-20. Every one of the cautions indicated in the decision of this Court in Raj Deo Sharma vs. State of Bihar was flouted with impunity. In the said decision a request was made to all the High Courts to remind all the trial Judges of the need to comply with Section 309 of the Code in letter and spirit. In fact, the High Courts were directed to take note of the conduct of any particular trial Judge who violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as per the law. 43. It is unfortunate that in spite of the specific directions issued by this Court and reminded once again in Shambhu Nath such recalcitrant approach was being made by the trial court unmindful of the adverse serious consequences flowing therefrom affecting the society at large. 43. It is unfortunate that in spite of the specific directions issued by this Court and reminded once again in Shambhu Nath such recalcitrant approach was being made by the trial court unmindful of the adverse serious consequences flowing therefrom affecting the society at large. Therefore, even while disposing of this appeal by confirming the conviction and sentence imposed on the appellant by the learned trial Judge, as confirmed by the impugned judgment of the High Court, we direct the Registry to forward a copy of this decision to all the High Courts to specifically follow the instructions issued by this Court in the decision in Raj Deo Sharma and reiterated in Shambhu Nath by issuing appropriate circular, if already not issued. If such circular has already been issued, as directed, ensure that such directions are scrupulously followed by the trial courts without providing scope for any deviation in following the procedure prescribed in the matter of a trial of sessions cases as well as other cases as provided under Section 309 CrPC. In this respect, the High Courts will also be well advised to use their machinery in the respective State Judicial Academy to achieve the desired result. We hope and trust that the respective High Courts would take serious note of the above directions issued in the decision in Raj Deo Sharma which has been extensively quoted and reiterated in the subsequent decision of this Court in Shambhu Nath and comply with the directions at least in the future years.” 17. In the present case also, the inference can easily be drawn that witness have been won over/improperly induced to change their stand and give false testimony and the same is liable to be disregarded. The deceased was harassed for brining insufficient dowry. The accused used to treat the deceased with cruelty for bringing insufficient dowry. She has died within seven years of her marriage. Her marriage was solemnized on 03.06.2007 and she was killed on 24.11.2009. It is the case of homicide. It is not a case of suicide. The deceased was burnt to death and her body was hanged to show that it was the case of suicide. They have to explain the circumstances which led to the death of the deceased under Section 106 of the Indian Evidence Act. It is also the case of dowry death. 18. It is not a case of suicide. The deceased was burnt to death and her body was hanged to show that it was the case of suicide. They have to explain the circumstances which led to the death of the deceased under Section 106 of the Indian Evidence Act. It is also the case of dowry death. 18. Their Lordships of Hon’ble Supreme Court in (2010) 13 SCC 689 in the case of Satya Narayan Tiwari @ Jolly and Another vs. State of Uttar Pradesh, have explained the term “soon before” the marriage which reads as under:- “28. There can be no quarrel with the proposition that the proximity test has to be applied keeping in view the facts and circumstances of each case. Regarding the aforesaid decision, the facts were somewhat different in that the deceased was not shown to have been subjected to cruelty by her husband for at least 15 months prior to her death. On the fact of that case, it was held that Section 304-B IPC was not attracted. 29. On the other hand, the present case fully answers the test of “soon before.” There is the testimony of demand of Maruti car being pressed by the two accused persons after about six months of the marriage of the deceased (which took place about three years before the incident) and of her being pestered, nagged, tortured and maltreated on non-fulfilment of the said demand which was conveyed by her to her parents from time to time on her visits to her parental home and on telephone. Things had reached to such a pass that on getting a message from her about three months before the incident, Surya Kant Dixit PW-1 accompanied by Jaideo Awasthi PW-2 had to go to her sasural in Farrukhabad in an attempt to dissuade the two accused from pressing such demand, but they (the two accused) humiliated them and turned them out of the house with the command not to enter their house again without meeting the demand of a Maruti car. He did not take any action on the consolation offered by the father-in-law of his daughter and also on the advice of his daughter. It was natural that the victim also did not want her father to take any extreme step against the two accused. He did not take any action on the consolation offered by the father-in-law of his daughter and also on the advice of his daughter. It was natural that the victim also did not want her father to take any extreme step against the two accused. She might have thought that things would improve with the passage of time but it seems that that did not happen. 30. Surya Kant Dixit PW-1 was in a helpless state after suffering humiliation at the hands of the accused persons about three months before the actual incident. He could simply wait and watch in the hope of things to improve, but the 24 situation did not improve at all. It, however, cannot be taken to mean that the demand made by the two accused persons had subsided or was given up by them. It can justifiably be inferred from what happened subsequently that they continued to torture the unfortunate lady because of non-fulfilment of the demand of Maruti car. In our opinion, the test of “soon before” is satisfied in the facts, evidence and circumstances of the present case. 55. We are of the view that the presumption of Section 113-B of the Evidence Act is attracted in this case and the discussion that we have made hereinabove makes it abundantly clear that the defence could not displace the said presumption. The culpability of the two accused in committing this crime is established to the hilt by the facts and circumstances proved by the prosecution. They undoubtedly are the authors of this crime. 57. To sum up, the prosecution has been able to prove the following: (1) The death of the deceased was caused by strangulation and burning within seven years of her marriage. (2) The deceased had been subjected to cruelty by her husband and mother-in-law (the two appellant-accused) over the demand of Maruti car in dowry raised and persistently pressed by them after about six months of the marriage and continued till her death. (3) The cruelty and harassment was in connection with the demand of dowry i.e. Maruti car. (4) The cruelty and harassment is established to have been meted out soon before her death. (5) The two accused were the authors of this crime who caused her death by strangulation and burning on the given date, time and place. 58. (3) The cruelty and harassment was in connection with the demand of dowry i.e. Maruti car. (4) The cruelty and harassment is established to have been meted out soon before her death. (5) The two accused were the authors of this crime who caused her death by strangulation and burning on the given date, time and place. 58. In our opinion, the trial Judge recorded an acquittal adopting a superfluous approach without in depth analysis of the evidence and circumstances established on record. On thoroughly cross-checking the evidence on record and circumstances established by the prosecution with the findings recorded by the trial court, we find that its conclusions are quite inapt, unjustified, unreasonable and perverse. Proceeding on a wrong premise and irrelevant considerations, the trial court has acquitted the accused. The accused are established to have committed the offences under Sections 498-A and 304-B IPC and under Section 4 of the Dowry Prohibition Act and the findings of the High Court are correct.” 19. Their Lordships of Hon’ble Supreme Court in (2011) 4 SCC 427 in the case of Bachni Devi and Another vs. State of Haryana, have reiterated the principle and explained the term “demand for dowry” under Section 304-B IPC and presumption. Their Lordships have held that as under:- “12. For making out an offence of “dowry death” under Section 304-B, the following ingredients have to be proved by the prosecution: (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; (d) such cruelty or harassment must be in connection with the demand for dowry. 19. In the backdrop of the above legal position, if we look at the facts of the case, it is clearly established that Kanta died otherwise than under normal circumstances. There is no dispute of fact that death of Kanta occurred within seven years of her marriage. That Kanta was subjected to harassment and ill-treatment by A-1 and A-2 after PW-8 refused to accede to 26 their demand for purchase of motorcycle is established by the evidence of PW-8 and PW-9. There is no dispute of fact that death of Kanta occurred within seven years of her marriage. That Kanta was subjected to harassment and ill-treatment by A-1 and A-2 after PW-8 refused to accede to 26 their demand for purchase of motorcycle is established by the evidence of PW-8 and PW-9. Then there is evidence of PW-10 that PW-8 had called him and DW-1 to his house where A-1 had made demand of motorcycle. PW-10 stated that he sought to reason to A-1 about inability of PW-8 to give motorcycle at which A-1 got angry and warned that Kanta would not be allowed to stay in her matrimonial home. It is true that the appellants produced DW-1 in defence and he did state in his examination-in-chief that he did not meet A-1 at the house of PW-8 but in the cross-examination when he was confronted with his statement under Section 161 CrPC (portion A to A) where it was recorded that he and PW-10 had gone to the house of PW-8 and both of them (PW-10 and DW-1) counselled A-1 to desist from demanding motorcycle but she stuck to her demand, DW-1 had no explanation to offer. The evidence of DW-1 is, therefore, liable to be discarded. 20. In the light of the evidence let in by the prosecution, the trial court cannot be said to have erred in holding that it was established that unlawful demand of motorcycle was made by A-1 and A-2 from PW-8 and Kanta was harassed on account of his failure to provide the motorcycle and that led Kanta to commit suicide by hanging. Pertinently, the demand of motorcycle by A-1 from PW-8 was for A-2 and when PW-8 showed his inability to meet that demand, A-2 started harassing and ill-treating Kanta. In this view of the matter, it cannot be said that there was no demand by A-2. 21. The High Court has also examined the matter thoroughly and reached the finding that A-1 and A-2 had raised a demand for purchase of motorcycle from PW-8, this demand was made within two months of the marriage and was a demand towards “dowry” and when this demand was not met, Kanta was maltreated and harassed continuously which led her to take extreme step of finishing her life. We agree with the above view of the High Court. We agree with the above view of the High Court. There is no merit in the contention of the counsel for the appellants that the demand of motorcycle does not qualify as a “demand for dowry.” All the essential ingredients to bring home the guilt under Section 304-B IPC are established against the appellants by the prosecution evidence. As a matter of law, the presumption under Section 113-B of the Evidence Act, 1872 is fully attracted in the facts and circumstances of the present case. The appellants 27 have failed to rebut the presumption under Section 113-B. 22. For the foregoing reasons, we find no merit in the appeal and it is dismissed accordingly. Two months time is given to A-1 to surrender for undergoing the sentence awarded to her.” 20. In the present case, respondents/accused have failed to rebut presumption under Section 113-B of the Evidence Act. 21. Their Lordships of Hon’ble Supreme Court in (2011) 11 SCC 733 , in the case of Sanjay Kumar Jain vs. State of Delhi, have held that in order to bring home the guilt under Section 304-B IPC, the prosecution must prove that victim was subjected to cruelty or harassment by her husband or his relatives. Such cruelty or harassment was for, on in connection with any demand for dowry. Such cruelty or harassment was done within seven years of the marriage. Their Lordships have held that as under:- “48. In State of Punjab vs. Iqbal Singh, this Court observed that crimes are generally committed in the privacy of residential homes and in secrecy and it is difficult to get independent direct evidence in such cases. That is why the legislature has, by introducing Sections 113-A and 113-B in the Evidence Act, tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established that the unfortunate event has taken place within seven years of the marriage. 49. On proper analysis of Section 304-B of the Penal Code and Section 113-B of the Evidence Act, it shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution is under an obligation to rule out any possibility of natural or accidental death. Where the ingredients of Section 304-B of the Penal Code are satisfied, the section would apply. The prosecution is under an obligation to rule out any possibility of natural or accidental death. Where the ingredients of Section 304-B of the Penal Code are satisfied, the section would apply. If death is unnatural, either homicidal or suicidal, it would be death which can be said to have taken place in unnatural circumstances and the provisions of Section 304-B would be applicable. 50. The death, otherwise than under normal circumstances, under Section 304-B of the Penal Code would mean the death not in usual course either natural or accidental death. Section 304-B creates a substantive offence. The necessity for insertion of the two provisions has been amply enumerated by the Law Commission of India in its 21st Report, dated 10.8.1988 on “Dowry Deaths and Law Reform.” This has been primarily done because of the pre-existing law in securing evidence to prove dowry-related deaths. 51. In order to bring home the guilt under Section 304-B of the Penal Code the following ingredients are necessary: (1) The victim was subjected to cruelty or harassment by her husband or his relatives. (2) Such cruelty or harassment was for, or in connection with any demand for dowry. (3) Such cruelty or harassment was done within seven years of the marriage. In the present case, deceased died within seven years of marriage. She was subjected to cruelty and harassment by her husband and relatives for bringing insufficient dowry.” 22. In 2016 (4) SCC 604 , in the case of Gajanan Dashrath Kharate vs. State of Maharashtra, their Lordships of Hon. Supreme Court have held that the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer explanation. In paragraph no. 13, their Lordships have held as under:- “13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7.4.2002, mother of the appellant-accused had gone to another Village Dahigaon. In paragraph no. 13, their Lordships have held as under:- “13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7.4.2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7.4.2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime.” 24. In (2015) 4 SCC 393 , in the case of Ashok vs. State of Maharashtra, their Lordships of Hon. Supreme Court have held that initial burden of proof is on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Their Lordships have held as under:- “12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. Their Lordships have held as under:- “12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt.” 25. Though Medical Officer who has conducted the postmortem examination was not examined but the postmortem would be admissible in view of Section 35 of the Indian Evidence Act, The postmortem report has been issued by the doctor in discharging of his official duties. Non-examination of Investigating Officer will not make any dent in the case of the prosecution. 26. Their Lordships in AIR 1996 SC 2905 , in the case of Behari Prasad and Others vs. State of Bihar, have held that non-examination of investigating officer does not per se vitiate a criminal trial. Their Lordships have held as under:- “22. It, however, appears to us that the entire case diary should not have been allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the case, it appears to us that the involvement of the accused in committing the murder has been clearly established by the evidences of the eyewitnesses. Such evidences are in conformity with the case made out in FIR and also with the medical evidence. Hence, for non-examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straitjacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial. These appeals, therefore, fail and are dismissed. The appellants who have been released on bail should be taken into custody to serve out the sentence.” 27. No specific role has been assigned by the prosecution to Tara in the commission of offence. The evidence has come only against accused-respondents Prem Ram, Girish Chandra and Pushpa Devi. 28. Thus, the prosecution has proved its case beyond reasonable doubt against the accused Prem Ram, Girish Chandra and Pushpa Devi under Sections 302, 498-A and 304-B of IPC and 3/4 of Dowry Prohibition Act. 29. Accordingly, the appeal is partly allowed. The judgment and order dated 25.06.2012 qua Prem Ram, Girish Chandra and Pushpa Devi is set aside. The accused-respondents namely Prem Ram, Girish Chandra and Pushpa Devi are convicted under Section 302, 498-A, 304-B of IPC and 3/4 of Dowry Prohibition Act, 1961. However, the accused Tara, D/o Prem Ram is acquitted of the charges framed against her, since no case is made out against her. 30. Let the convicts Prem Ram, Girish Chandra and Pushpa Devi be produced before the Court for hearing on the quantum of sentence on August 9, 2017. Production warrant be accordingly prepared by the Registry for the presence of the convicts for hearing them on the quantum of sentence on the next date fixed. 31. Put up on August 9, 2017 for further orders.