JUDGMENT Pradip Kumar Mohanty, C.J. – Both these appeals have been directed against the judgment of conviction and order of sentence dated 17.08.2005 passed by the learned Additional Sessions Judge, Fast Track Court No.-V, Deoghar in Sessions Case No. 278 of 2003 with Sessions Case No. 04 of 2004 arising out of Deoghar P.S. Case No. 211 of 2003 corresponding to G.R. No. 592 of 2003, whereby and where under all the appellants have been convicted under Section 304 B of the Indian Penal Code and the appellant Kumod Mandal has been sentenced to undergo imprisonment for life and the appellants Dhathuri Mandal and Lagni Devi have been sentenced to undergo R.I. for seven years each. 2. Both these appeals have been preferred against the same judgment and they are being heard together and decided by this common judgment. 3. The case of the prosecution, in short as per the fardbeyan of informant (Choukidar 4/14 Balkrishna Mirdha of Jasidih Police Station) who heard from his co-villagers that a female dead body is lying in the river Darwa east of his village. The informant went at the place of occurrence with his neighbour Choukidar 4/16 Neelkanth Mirdha and found a dead body lying in the river. Thereafter, the informant kept watching the dead body and sent Neelkanth Mirdha to the police station to inform the police. When the police came, the dead body was taken out from the river. By the physical appearance it seems that the dead body was of a married woman and she was killed by cutting the right side of her neck and for concealing the dead body, the same was thrown in the river. 4. On the basis of this information, an F.I.R. being Deoghar P.S. Case No. 211 of 2003 was registered under Section 302/201 of the Indian Penal Code. Initially the dead body was not identified and during the course of investigation the same was identified as Anita Devi wife of Kumod Mandal. After investigation, initially the police submitted charge-sheet against four accused persons, namely, Yusuf Ansari, Kumod Mandal, Dhathuri Mandal, Lagni Devi who were tried in S.T. Case No. 278 of 2003. Thereafter, a supplementary charge-sheet was submitted against one Upendra Mandal and after cognizance his case was also committed to the Court of Session being Session Case No. 04 of 2004. Subsequently both the Sessions'' Cases were tried together. 5. Thereafter, a supplementary charge-sheet was submitted against one Upendra Mandal and after cognizance his case was also committed to the Court of Session being Session Case No. 04 of 2004. Subsequently both the Sessions'' Cases were tried together. 5. Charges were framed against these appellants'' under Section 304 B/ 34 of the Indian Penal Code and against appellant Kumod Mandal an additional charge under Sections 201 and 34 of the Indian Penal code was framed to which they did not plead guilty and claimed to be tried. 6. The prosecution has examined altogether 10 witnesses in this case. 7. After closure of the evidence, the appellants were examined under Section 313 of the Code of Criminal Procedure. The appellants did not adduce any evidence in defence. 8. The learned court below after considering the evidence and after hearing the arguments convicted all the appellants under Section 304 B of the Indian Penal Code. The appellant Kumod Mandal has been sentenced to undergo imprisonment for life and the appellants Dhathuri Mandal and Lagni Devi have been sentenced to undergo R.I. for seven years each. 9. The appellants being aggrieved of the said judgment have preferred these two appeals which have been heard together. 10. Heard learned counsel for both the parties and we have gone through the judgment. 11. P.W.-1 (Santosh Mandal) had mediated in the marriage between the deceased and Kumod Mandal. He deposed that at the time of marriage an amount of Rs. 19,000/- was given as dowry and Rs. 2000/- was due. He further stated that Kumod Mandal used to say that the colour of the deceased is black and as such he is torturing her. Mother-in-law of deceased, Lagni Devi, was also using filthy language to the deceased. He further stated that he had seen the dead body on which there was mark of knife injury on the neck of the deceased. During cross-examination he stated that the kitchen of Dhaturi and Lagni was separate. 12. P.W.-2 (Bhola Paswan @ Bhola Hazra), is the seizure list witness of rickshaw which is marked as exhibit-1. 13. P.W.3-(Bijay Kumar Mandal) deposed that two months prior to the date of occurrence the deceased had told him that her husband and mother-in-law (Lagni Devi) and sister-in-law were torturing her for the demand of money for running business. 12. P.W.-2 (Bhola Paswan @ Bhola Hazra), is the seizure list witness of rickshaw which is marked as exhibit-1. 13. P.W.3-(Bijay Kumar Mandal) deposed that two months prior to the date of occurrence the deceased had told him that her husband and mother-in-law (Lagni Devi) and sister-in-law were torturing her for the demand of money for running business. During cross examination he deposed that he did not remember the date and time of incident. 14. P.W.-4 (Upendra Kumar Mandal) deposed that about 6 months prior to the occurrence he along with Arvind Mandal had gone to the matrimonial house of the deceased. The deceased had told them that her father-in-law, mother-in-law, husband and sister-in-law etc. are torturing her for dowry. 15. P.W.5 (Arvind Mandal) is the brother of the deceased. He deposed that marriage between the deceased and Kumod Mandal was solemnized on 07.07.2000. He had given an amount of Rs. 40,000/- with other household articles to the groom side. After the marriage the mother-in-law of the deceased (Lagni Devi), sister-in-law, father-in-law (Dhaturi Mandal), husband (Kumod Mandal), brother-in-law (Upendra Mandal) were demanding dowry of Rs. 20,000/- and in failure to fulfil the demand, they used to beat and torture the deceased. He further stated that on earlier occasion the deceased was beaten and she had come to her paternal house and after mediation she was sent to her matrimonial home. He deposed that at one time the deceased was beaten by tying her with a cot. He deposed that he along with his friend Upendra Mandal had gone to the matrimonial house of the deceased and she had told him that her in-laws are torturing her for demand of dowry. He proved his signature on the Jimmanama of the dead body which is marked as Ext.2. He also proved his signature on a typed copy of petition given to S.P. Deoghar, which is marked as exhibit-3. During cross-examination, he deposed that earlier he had not made any complaint with regard to torture of deceased by the accused persons. Kumod Mandal is residing with his mother and father. He did not say about the date on which the dowry was given. He had sent his sister about fifteen days prior to the date of occurrence. The incident of beating by tying with cot had happened about 1-2 days prior to the date of occurrence. Kumod Mandal is residing with his mother and father. He did not say about the date on which the dowry was given. He had sent his sister about fifteen days prior to the date of occurrence. The incident of beating by tying with cot had happened about 1-2 days prior to the date of occurrence. He did not say about the exact date of the incident. 16. P.W.-6 (Dr. Rameshwar Mahto) had conducted the postmortem on the dead body of the deceased and the post-mortem report is marked as exhibit-4. He found one incised wound on the right side of neck in its middle transversely cutting 4" x " X bone deep cutting the muscle fasciae. He opined that the injury has been caused by sharp cutting weapon and the death has been caused due to shock and hemorrhage by the above injury. 17. P.W.-7 (Bal Krishna Mirdha) is the informant of the case. He admitted his statement made in the fardbeyan. He proved his signature on the fardbeyan which is marked as Exhibit-5. 18. P.W.-8 (Sumitra Devi) is the aunt of the deceased. She deposed that the marriage between the deceased and Kumod Mandal was solemnized prior to one year of the occurrence. At the time of marriage Rs. 40,000/- was given as dowry but the deceased was tortured because her colour was black. The deceased used to come to her parental house but she was sent back after convincing her. She further deposed that Lagni Devi, Dhaturi Mandal, Dhanwanti Devi and Kumud Mandal were beating the deceased for demand of dowry. She further deposed that when she went to leave the deceased at her matrimonial house, her in-laws used filthy language. During her cross-examination she did not say about the date, time and day of the assault. 19. P.W.-9 (Ram Udai Devedi) is the investigating officer of the case. He deposed that he had seized one rickshaw and prepared seizure list which is marked as Exhibit-6. He further proved the seizure list register of Bhola Paswan which is marked as Exhibit-7. According to register the seized rickshaw was given to Yusuf Ansari. Thereafter, Yusuf Ansari was arrested and his confessional statement was recorded which is marked as Exhibit-8. He deposed that he had seized one rickshaw and prepared seizure list which is marked as Exhibit-6. He further proved the seizure list register of Bhola Paswan which is marked as Exhibit-7. According to register the seized rickshaw was given to Yusuf Ansari. Thereafter, Yusuf Ansari was arrested and his confessional statement was recorded which is marked as Exhibit-8. At the time of arrest the accused Yusuf Ansari was having injury on the middle finger of left hand and on the thumb of right hand as such after preparing requisition he was sent for treatment. Requisition is marked as Exhibit-9. He proved the endorsement on the fardbeyan for lodging F.I.R. which is marked as Exhibit-10. He further proved the formal F.I.R. which is marked as Exhibit-11. 20. P.W.-10 (Dr. R.N. Prasad) had examined the accused Yusuf Ansari. He found two lacerated injuries, one on the left index middle finger " X ?" x skin deep with blood clot and other was on the right thumb " X ?" x skin deep with blood clot. He opined that both the injuries are simple and were caused by hard and blunt substance. The injury report is marked as Exhibit-12. 21. As per the evidence adduced, the deceased was married to the appellant. The said marriage had taken place approximately one year prior to the date of occurrence. The dead body was found in the river side having antimortem injuries. Thus, the death had taken place within 7 years of the marriage and the death is un-natural. Now, on the point of torture and the demand of dowry there are evidences on this point. 22. P.W.1 who is the mediator in the marriage deposed that the appellant husband use to complain about the complexion of the deceased and that was the reason of torture. He also stated that the deceased had told him that dowry was being demanded by these appellants. P.W.3, deposed that the deceased, two months prior to the occurrence, had told him that her husband, mother-in-law and others use to harass her because she was being asked to provide money for business. P.W.4 also stated that he went to the house of the deceased where the deceased has narrated that the accused persons were demanding dowry and were torturing her. He stated that the neighbour''s also affirmed the fact that the deceased was being tortured. P.W.4 also stated that he went to the house of the deceased where the deceased has narrated that the accused persons were demanding dowry and were torturing her. He stated that the neighbour''s also affirmed the fact that the deceased was being tortured. P.W.5 the brother of the deceased stated that the deceased was being tortured for the demand of dowry. He further stated she was earlier also beaten up by these appellants. From the evidence adduced it is quite clear that there is a consistent evidence that the deceased was being tortured for demand of dowry. It has come in the evidence that within two months from the date of death, demand was made and deceased was tortured. This fact was narrated by the P.W.-2 who got this information from the deceased herself. Thus, from the aforesaid evidence, we find that the death had occurred within seven years from the date of marriage, the death was un-natural and the deceased was subjected to torture for demand of dowry, that to, soon before her death. The evidence of P.W.2 and P.W.5 clearly suggests that the demand of dowry was "soon before the death". Thus the prosecution is able to prove the essential ingredients mentioned in Section 113 B of the Evidence Act. In view of the statutory presumption the burden now shifts on the accused. The accused must give cogent evidence to prove his innocence. Failure to give an explanation or giving false explanation can be taken as an additional circumstances against him. 23. The Hon''ble Supreme Court in the case of Naresh Kumar v. State of Haryana as reported in (2014) 8 SCC 129 in paragraph no 13 has held as under; "13. On proof of the essential ingredients mentioned in Section 113 B, if the statutory presumption arises against the accused which shifts the burden on the accused, the accused must give cogent explanation. Failure to give an explanation or giving of false explanation can be taken as an additional circumstance against him. The requirement of allegations or demand of dowry against the relatives of the husband may have to be more specific and the Court may be more cautious in dealing with such allegations, if there is any doubt about over implication, but responsibility of the husband may be obvious from the circumstances. The requirement of allegations or demand of dowry against the relatives of the husband may have to be more specific and the Court may be more cautious in dealing with such allegations, if there is any doubt about over implication, but responsibility of the husband may be obvious from the circumstances. In these circumstances, the case of the appellant cannot stand at par with his mother and brother who have been acquitted by the High Court, by way of caution against over implication, as well as for want of cogent evidence against them. Case of the husband stands on different footing." 24. Applying the said ratio in this case, we find that the husband-appellant (Kumod Mondal) i.e. Criminal Appeal (DB) No. 133 of 2006 has failed to give cogent explanation or far less any explanation. After the burden has shifted on the accused they have not discharged the said burden and thus there is no hesitation to hold the appellant of Criminal Appeal (DB) No. 133 of 2006 guilty for the offence under Section 304 B of the Indian Penal Code. We uphold the conviction of the appellant, as we do not find any illegality so far as the judgment passed against this appellant by learned Trial Court. So far the sentence is concerned, we find the same to be on the higher side. We, therefore sentence the appellant (husband) to under go R.I. for 12 years. Accordingly, this Cr. Appeal (DB) No. 133 of 2006 is dismissed with the modification of sentence. 25. So far as appellants in respect of Criminal Appeal No. 1116 of 2005 is concerned, the appellant no.1 is the father-in-law and appellant no.2 is the mother-in-law of the deceased. In terms of the judgment of the Hon''ble Supreme Court in the case of Naresh Kr. v. State of Haryana (supra) , these two appellants stands on a different footing. 26. P.W.1 in his cross-examination has categorically stated that these two appellants were residing separately from the husband of the deceased. He stated that these appellants were residing separately from their respective children though the children jointly use to maintain them. He clearly stated that all the sons of these appellants were living separately having different business. He stated that these two appellants were separate and they use to reside separately from their sons. He stated that these appellants were residing separately from their respective children though the children jointly use to maintain them. He clearly stated that all the sons of these appellants were living separately having different business. He stated that these two appellants were separate and they use to reside separately from their sons. This evidence clearly suggests that these two appellants were separate from the house of the deceased. Further from perusal of the evidence, it transpires that there is no specific allegations against these two appellants. In absence of specific evidence against these appellants, these two appellants can not be convicted, under Section 304 B of the Indian Penal Code. Thus, applying the ratio of the judgment of the Hon''ble Supreme Court (supra) . We find that there is no sufficient material in this case to convict these two appellants. Thus, the Criminal Appeal (S.J.) No. 1116 of 2005 stands allowed and the appellants are acquitted from the charges framed against them. These appellants are already on bail thus are discharged from their liabilities. 27. This appeal (Cr. Appeal (SJ) No.1116 of 2005) stands allowed and Cr. Appeal (DB) No. 133 of 2006 stands dismissed with the modification of the sentence.