JUDGMENT : Shree Chandrashekhar, J. Oral Order 1. The sole appellant has faced the trial on the charge under section 304-B of the Indian Penal Code for committing dowry death of his wife, namely, Jayanti Devi and under section 3/4 of the Dowry Prohibition Act. In Sessions Trial No. 124 of 2008, the appellant has been convicted and sentenced to RI for life under section 304-B of the Indian Penal Code and RI for six months and fine of Rs.3000/- under section 4 of the Dowry Prohibition Act. 2. The informant of this case, namely, Duryodhan Warik is father of the deceased. His fardbeyan was recorded on 22.02.2008 at around 11:30 hrs. at TMH police post, on the basis of which Gua P.S. Case No. 17/08 was registered against the appellant. During the trial, the prosecution has examined ten witnesses; the informant is PW-8. 3. The prosecution witnesses, namely, Diwakar Behra PW-1, Madhusudan Behra PW-2 and Soka Bari PW-3 have been declared hostile. 4. The case set up by the prosecution against the appellant is that on account of non-fulfilment of demand of Rs.40000/- and since his wife was not able to bear a child, the appellant has killed her by setting her on fire. 5. In his fardbeyan, the informant has stated that he received a phone call at about 9:00 p.m. on 20.02.2008 about hospitalization of his daughter at Noamundi Hospital. His daughter, namely, Jayanti Devi, aged about twenty-two year, was married to the appellant about two years back and in the marriage he has given sufficient dowry to the appellant. However, after some time his daughter informed him that her husband is demanding Rs.40000/- and when he expressed his inability to pay money his son-in-law started marpit with his daughter. He was threatening to kill her. The information in this regard was given to him by his daughter when she came back his home. He reached Noamundi Hospital at about 22:30 hrs. and spoke to his daughter. His daughter told him that about 8:30 p.m. her husband poured 5-litre kerosene oil on her and set her on fire. He has taken his daughter for better treatment to TMH Hospital where in course of treatment she has died at 4:40 a.m. the same day. 6. He reached Noamundi Hospital at about 22:30 hrs. and spoke to his daughter. His daughter told him that about 8:30 p.m. her husband poured 5-litre kerosene oil on her and set her on fire. He has taken his daughter for better treatment to TMH Hospital where in course of treatment she has died at 4:40 a.m. the same day. 6. In the court, the informant has narrated a similar story about marriage of his daughter, demand of dowry and her hospitalization at Noamundi Hospital and TMH Hospital. 7. The mother of the deceased, namely, Binpani Warik PW-4 has also spoken about the demand of dowry and ill-treatment of her daughter at the hands of the appellant. The uncle of the deceased, namely, Trilochan Warik PW-5 has stated that Jayanti Devi was initially treated well by the appellant, however, for buying a dumper he was demanding Rs.40000/- and when his brother could not fulfil his demand he started harassing Jayanti Devi and he was threatening her that he would solemnize second marriage. 8. Through the evidence of PW-4, PW-5 and PW-8, the prosecution has proved demand of Rs.40000/- by the appellant. 9. Jayanti Devi has died due to burn injuries is testified by Dr. Lalan Choudhary, who has conducted the post-mortem examination. PW-6 and PW-7 both have stated that Duryodhan Warik has informed them that the appellant has set his daughter on fire by pouring kerosene oil. Dr. Lalan Choudhary PW-10 has observed deep charring burn injuries all over the body of Jayanti Devi except her soles. He has also seen black sooty marks on the front portion of her body. On dissection, he has found right temporal region of her brain contused. He has also found about 350 ml dark coloured fluid in her stomach. In the opinion of the doctor, death was caused due to burn injury which was to the extent of 98% approximately. According to the doctor, the head injury which was ante-mortem in nature was caused by blunt object. 10. A person may fall on the ground and suffer head injury and, therefore, presence of head injury is not determinative of homicidal death of Jayanti Devi, but presence of 350 ml dark coloured fluid in her stomach would indicate that due to head injury she has not died instantly and while she was put on fire she has inhaled carbon particles. On such facts, the prosecution has proved homicidal death of Jayanti Devi. 11. The offence under section 304-B IPC has been inserted in the Indian Penal Code by way of Amendment Act, 1986. A corresponding amendment was made in the Indian Evidence Act, 1872 by which section 113-B was inserted to raise a presumption of dowry death. The language employed in section 304-B IPC and section 113-B of the Evidence Act would reveal a common point of reference in both the provisions; the woman must have been “soon before her death” subjected to cruelty or harassment for or in connection with the demand of dowry. In “Baijnath and others Vs. State of Madhya Pradesh” reported in (2017) 1 SCC 101 , the Hon'ble Supreme Court has dealt with the presumption under section 113-B of the Evidence Act, 1872 and proof of cruelty or harassment, thus; “29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harrassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith. 30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the abovereferred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.” 12. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the abovereferred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.” 12. In the present case, the prosecution has discharged its initial burden by prima-facie establishing the essential facts which shall constitute the offence under section 304-B of the Indian Penal Code. The prosecution has proved through cogent evidence that Jayanti Devi has died within seven years of her marriage, she has died otherwise than normal circumstances and the informant has stated that his daughter has informed him about demand of Rs.40000/- and threat by the appellant to kill her when she came to him second time; her marriage was solemnized just two years before. PW-4 and PW-5 have also supported the prosecution case on demand of Rs.40000/- and ill treatment of Jayanti Devi at the hands of her husband. 13. On the basis of the evidences laid by the prosecution, in our opinion, the appellant has rightly been convicted under section 304-B of the Indian Penal Code. 14. Smt. Shilpi John, the learned Amicus has next contended that infliction of maximum punishment of RI for life is not proper and justified. 15. The informant and his wife both have admitted that when their daughter was taken to TMH Hospital the appellant was with them and he was the person who has arranged ambulance for transfer of his wife from Noamundi Hospital to TMH Hospital. What was the treatment given to Jayanti Devi at Noamundi Hospital and who has treated her have not been disclosed. The Investigating Officer has admitted that he has not recorded the statement of the doctor and the nurse at Noamundi Hospital as well as of TMH Hospital. The treatment given to Jayanti Devi at TMH Hospital has also not been revealed by the prosecution. The expression “but which may extend to imprisonment for life” under sub-section(2) to section 304-B of the Indian Penal Code reflects the legislative intendment that maximum punishment of RI for life shall not be inflicted as a matter of course. Of course, the minimum punishment should not be less than seven years but before maximum punishment is given to an accused the court must record its finding on the mitigating as well as aggravating circumstances. Of course, the minimum punishment should not be less than seven years but before maximum punishment is given to an accused the court must record its finding on the mitigating as well as aggravating circumstances. The aforesaid circumstances which are leaning towards the appellant have not been considered by the learned Sessions Judge while imposing the maximum punishment of RI for life under section 304-B of the Indian Penal Code. The learned Sessions Judge has simply recorded that since it is a heinous crime in the society, therefore, the convict is sentenced to undergo imprisonment for life for the offence under section 304-B of the Indian Penal Code. We do not approve recording of maximum punishment in a mechanical way. 16. In “State of Punjab v. Manjit Singh and Ors.” reported in AIR 2009 SC 2888 the Supreme Court has further observed as under: “12. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the IPC, the Code confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well as the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances vis-a-vis an accused in each case. In such situation, the obligation of the court in making the choice of death sentence for the person who is found guilty of murder becomes more onerous indeed.” 17. In “Hem Chand v. State of Haryana” reported in (1994) 6 SCC 727 , the Supreme Court has observed as under: “7. Now coming to the question of sentence, it can be seen that Section 304-B IPC 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 304-B IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what 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 113-B 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 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 304-B IPC 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. In the instant case no doubt the prosecution has proved that the deceased died an unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that there is no charge under Section 302 IPC. The trial court also noted that there were two sets of medical evidence on the file in respect of the death of the deceased. Dr Usha Rani PW 6 and Dr Indu Lalit PW 7 gave one opinion. According to them no injury was found on the dead body and that the same was highly decomposed. The trial court also noted that there were two sets of medical evidence on the file in respect of the death of the deceased. Dr Usha Rani PW 6 and Dr Indu Lalit PW 7 gave one opinion. According to them no injury was found on the dead body and that the same was highly decomposed. On the other hand, Dr Dalbir Singh PW 13 who also examined the dead body and gave his opinion, deposed that he noticed some injuries at the time of re-post-mortem examination. Therefore at the most it can be said that the prosecution proved that it was an unnatural death in which case also Section 304-B IPC would be attracted. But this aspect has certainly to be taken into consideration in balancing the sentence to be awarded to the accused. As a matter of fact, the trial court only found that the death was unnatural and the aspect of cruelty has been established and therefore the offences punishable under Sections 304-B and 201 IPC have been established. The High Court in a very short judgment concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances as a result of cruelty meted out to her and therefore an offence under Section 304-B IPC was made out. Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.” 18. In the background of the mitigating circumstances in this case and the judgments on the issue, we hold that sentence of RI for life inflicted upon the appellant for the offence under section 304-B of the Indian Penal Code is not proper and while so, it is set-aside. 19. In the background of the mitigating circumstances in this case and the judgments on the issue, we hold that sentence of RI for life inflicted upon the appellant for the offence under section 304-B of the Indian Penal Code is not proper and while so, it is set-aside. 19. Accordingly, conviction of the appellant, namely, Kurupa Behra under section 304-B of the Indian Penal Code dated 17.04.2010 passed by the learned 1st Additional Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 124 of 2008 is affirmed. But, while affirming his conviction under section 304-B of the Indian Penal Code, the appellant, namely, Kurupa Behra is sentenced to RI for ten years. 20. The conviction and the sentence of the appellant, namely, Kurupa Behra under section 4 of the Dowry Prohibition Act are affirmed. 21. Sri Satish Kumar Keshri, the learned APP states that the appellant has remained in custody for more than 11 years. 22. Accordingly, the appellant, namely, Kurupa Behra, who is in custody, shall be released forthwith, if not required in connection to any other case. 23. In the result, Criminal Appeal (D.B.) No. 300 of 2012 is partly allowed. 24. We appreciate the able assistance rendered by Smt. Shilpi John, the learned Amicus. She shall be paid fee and reimbursed for the expenses incurred by her. 25. Let lower court records be transmitted to the court concerned, forthwith. 26. Let a copy of the judgment be communicated to the trial court through FAX.