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2020 DIGILAW 1303 (ALL)

Ram Shanker v. State of U. P.

2020-11-10

VIRENDRA KUMAR SRIVASTAVA

body2020
JUDGMENT : VIRENDRA KUMAR SRIVASTAVA, J. 1. This appeal has been preferred against the judgment and order dated 19.01.2002 passed by Additional Sessions Judge, Fast Track Court-II, Rai Bareli in Sessions Trial No. 188/95 arising out of Case Crime No. 63/95 under Sections-498-A, 304B, 120B I.P.C. and Section ¾ Dowry Prohibition Act 1986 (in short D.P. Act), Police Station-Lalganj, District-Rai Bareli, whereby the appellants-Ram Shankar and Kamlesh Kumar have been convicted and sentenced for the offence under Section 304B I.P.C. for seven years rigorous imprisonment, for the offence under Section 498A I.P.C. for two years rigorous imprisonment and fine of Rs. 1000/- each and for the offence under Section 4 D.P. Act for one year rigorous imprisonment and fine of Rs.1000/-each. It has further been directed that the appellants have to go undergo three months imprisonment in default of payment of fine for offence under Section 498A I.P.C. and three months imprisonment in default of payment of fine for offence under Section 4 D.P. Act. All the sentences have been directed to run concurrently. 2. The prosecution story, in brief, is that the deceased, Dhanpati, daughter of Lal Bahadur (PW-1) (informant), was married to the appellant-Kamlesh Kumar in the year 1992. On 25.02.1995 at 6:30 a.m. Lal Bahadur (PW-1) lodged first information report (in short F.I.R.) (Ext.Ka-1) at P.S. Lalganj, District-Raibareli alleging that after her marriage the appellant was asking Rs. 20,000/- and a motorcycle as a dowry and on account of non-fulfillment of dowry, the appellant-Kamlesh Kumar, his sister-Ram Payari (co-accused) and his father, the appellant-Ram Shankar (since deceased) used to harass and torture the deceased and had forcibly taken her all the jewellery. It is further stated in the F.I.R. that on 24.02.1995 the appellant-Kamlesh Kumar, co-accused (Ram Pyari) and the appellant-Ram Shanker (since deceased) caused death of the deceased, Dhanpati, aged about 22 years, by setting her on fire. 3. On the said information (Ext.Ka-1), chik report (Ext.Ka-3) was registered as Crime No. 63/95, under Section 498-A, 304-B and Section ¾ D.P. Act against the appellant-Kamlesh Kumar, co-accused-Ram Pyari and the appellant-Ram Shankar (since deceased) and the same was entered into General Diary (Ext.Ka-4) by Head Constable, Ram Sharma (PW-4). Investigation was handed over to Dy. S.P. Rajendra Kumar Pandey (PW-6). 4. Sri. Investigation was handed over to Dy. S.P. Rajendra Kumar Pandey (PW-6). 4. Sri. Ram Das (PW-5), Executive Magistrate/Tehsildar was deputed to conduct the inquest of the deceased, who reached the place of occurrence on 25.02.1995, conducted the inquest proceeding, prepared inquest report (Ext.Ka-5) on 25.02.1995 at about 10:00 a.m. sealed the dead body of the deceased, prepared relevant police papers (Ext.Ka-6 to Ext.Ka-10) and sent it for post-mortem examination to District Hospital, Raibareli. 5. Dr. R.P. Verma (PW-3) and late Dr. S.K. Singh jointly conducted the post-mortem examination of the deceased-Dhanpati @ Dhanno, prepared post-mortem report (Ext.Ka-2) and found the following anti-mortem injuries on her body:- (i) Superficial to deep burn injuries on whole body containing red color riges. (ii) Bloody froth was coming out from both nostrils. 6. In internal examination, it was found that brain including its membrane, lungs trachea were conjugated, both side of heart was full of blood, stomach was swollen containing 150 gm. liquid material. 7. According to him (PW-3), the deceased had died due to shock, caused by anti mortem burn injury, at any time in the morning of 24.02.2005. 8. Dy. S.P. Rajendra Kumar Pandey (PW-6), during investigation, visited the place of occurrence, prepared the site plan (Ext.Ka-11), recorded the statement of witnesses, perused the inquest report as well as post-mortem report and filed charge sheet (Ext.Ka-12) against the appellant Kamlesh Kumar, co-accused-Ram Pyari and the appellant Ram Shanker (since deceased) before the concerned Magistrate, who after providing the copy of relevant police papers as required under Section 207 of Criminal Procedure Code, 1973 (hereinafter referred to as Code) to the appellant and other co-accused, committed the case to Sessions Judge, Raibareli for trial. 9. The charges were framed against the appellant-Kamlesh Kumar, co-accused-Ram Pyari and the appellant-Ram Shankar (since deceased), who denied the charges and claimed for trial. 10. The prosecution, in order to prove its case, examined the Lal Bahadur (PW-1), Harsh Bahadur (PW-2), Dr. R.B. Verma (P.W-3), Head Constable, Ram Sharma (PW-4), Executive Magistrate Ram Das (PW-5) and Investigating Officer, Rajendra Kumar Pandey (PW-6). 11. After the prosecution evidence, the statements of the appellants and other co-accused were recorded under Section 313 of the Code, who admitted that deceased had died due to burn injury, inside their house, within three years of her marriage but denied the prosecution story and stated that they have been falsely implicated. 11. After the prosecution evidence, the statements of the appellants and other co-accused were recorded under Section 313 of the Code, who admitted that deceased had died due to burn injury, inside their house, within three years of her marriage but denied the prosecution story and stated that they have been falsely implicated. The appellant-Kamlesh Kumar stated that the deceased-Dhanpati wanted to go with him to Mumbai but he refused as his mother was disabled and due to his refusal, the deceased committed suicide by setting herself on fire. He further stated that he had given information of the said occurrence on same day at police station. The appellant-Ram Shanker (since deceased) further stated that after death of the deceased, her father and brother asked money from him and due to his refusal, he had been falsely implicated in this case. 12. To controvert the prosecution story, the appellants in their defence examined Mohd. Jarmish Khan (DW-1), Ram Baran (DW-2) and H.C.P. Sri. Ram Sharma (DW-3). 13. The trial Court, after hearing the learned counsel for the appellants as well as counsel appearing for the State and considering the material available on record, convicted and sentenced the appellant-Kamlesh Kumar and the appellant-Ram Shanker (since deceased) and acquitted the co-accused, Ram Pyari vide impugned judgment and order. Aggrieved with the said judgment, this appeal has been preferred by the appellants. 14. During the pendency of the appeal, the appellant, Ram Shanker died and his appeal has been abated vide order dated 03.05.2018. 15. Heard Sri. Shishir Pradhan, learned counsel for the appellant and Sri. G.D. Bhatt, learned A.G.A. for the State. 16. Learned counsel for the appellant has submitted that the appellant is innocent and has been falsely implicated in this case. Learned counsel further submitted that there was no demand of dowry from the side of the appellant as no complaint was made by the informant to any authority in this regard prior to this occurrence and no cruelty or harassment was caused to the deceased soon before her death. The appellant was doing job in Mumbai and at the time of occurrence he had come to see his ailing mother. Learned counsel further submitted that the deceased was insisting to go Mumbai with the appellant but due to low income of the appellant, he advised the deceased to stay at his house with the mother for her service. The appellant was doing job in Mumbai and at the time of occurrence he had come to see his ailing mother. Learned counsel further submitted that the deceased was insisting to go Mumbai with the appellant but due to low income of the appellant, he advised the deceased to stay at his house with the mother for her service. Learned counsel further submitted that due to denial of the appellant, the deceased in frustration had committed suicide by setting her on fire inside in a room. Learned counsel further submitted that in order to save the deceased, the appellant, his family members and other co-villagers had broken and pulled down the door by axe and spade but could not save the deceased as she had died by burn injuries. Learned counsel further submitted that thereafter the appellant informed the concerned police station on same day in the evening and also informed his father-in-law (PW-1). Learned counsel further submitted that F.I.R. was lodged by delay of more than 24 hrs without any explanation by PW-1 after due consultation to extract money from appellants. Learned counsel further submitted that the impugned judgment and order passed by trial Court is against the settled principle of law as well as evidence available on record, which is is liable to be set aside and the appeal be allowed. 17. Per contra, learned A.G.A. vehemently opposing the submission of learned counsel for the appellant, submitted that the prosecution has successfully proved its case beyond reasonable doubt. Learned A.G.A. further submitted that at the time of occurrence the appellant was sleeping with the deceased and had caused the death of the deceased due to demand of dowry. Learned A.G.A. further submitted that the information given by the appellant at police station after 12 hours of the occurrence, was in order to create a false story in his defence. Learned A.G.A. further submitted that deceased had died inside the house of the appellant and as the informant (PW-1) got information, he lodged F.I.R., therefore there is no delay in lodging the F.I.R. Learned A.G.A. further submitted that the fact that the appellant, who was present at the time of occurrence with the deceased and his version that deceased died due to suicidal burn injury is totally false as no sign, symptoms or evidence of suicide was found from the place of occurrence. Learned A.G.A. further submitted that neither any inflammable articles such as match box, kerosene oil etc. was found nor recovered from the place of occurrence by the Investigating Officer. Learned A.G.A. further submitted that the ocular evidence is supported with the medical evidence and there is no illegality in the impugned judgment and order passed by trial Court and the appeal is liable to be dismissed. 18. I have heard the rival submissions advanced by learned counsel for both the parties and perused the record. 19. Before considering the evidence available on record, led by both parties, in the light of argument advanced by the learned counsel for the parties, it is necessary to refer the relevant provision of law relating to the offence in question i.e. Section 304-B and Section 498-A I.P.C. Section 113-B of Indian Evidence Act and Section 2 Dowry Prohibition Act, 1961 which are as under:- “Section 304-B (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death. Explanation - For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. (2) 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. Section 498-A Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation - For the purpose of this section “cruelty” means: (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. Explanation - For the purpose of this section “cruelty” means: (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Section 113-B of Indian Evidence Act - Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation - For the purposes of this section “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code. Section 2 of Dowry Prohibition Act-Definition of “dowry.” In this Act “dowry” means any property or valuable security given or agreed to be given either directly or indirectly: (a) by one party to a marriage to the other party to the marriage. (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person.” 20. The above provision, related with dowry death, clearly shows that if the death of any women is caused within seven years of her marriage by burn “or otherwise than under normal circumstances” and it is shown that if soon before the death of such women, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry and if the prosecution succeeds to prove the above ingredient, such death shall be called as dowry death. In addition to above, Section 113-B of Indian Evidence Act further provides that in such cases, if it is shown that such women was subjected, soon before her death by the accused, to cruelty or harassment for in or connection with any demand for dowry, the Court shall presume that such accused had caused the dowry death. 21. Admittedly the appellant is husband of deceased-Dhanpati, who had died inside the house of the appellant within seven years of her marriage. This fact has been admitted by the appellant in his statement under Section 313 of the Code and also stated by Ram Baran (DW-2), who in his examination-in-chief has specifically stated that on the day of occurrence at about 7:00 a.m. he, upon hearing the noise and seeing the smoke coming out from the house of the appellant, reached at the house of the appellant. He further stated that Nanhe, Sukhdin, Ram Murat and so many villagers had also reached there. He further stated that the appellant-Kamlesh Kumar was trying to cut the door and they had also tried to cut that door but could not succeed as the handle of axe was broken. Thereafter they pulled down the door by spade and saw that the deceased, wife of the appellant-Kamlesh Kumar, had been burnt. 22. Thus it has only to be seen whether any cruelty or harassment was caused to deceased soon before her death due to demand of dowry or not. 23. The term “soon before death” used in Section 304-B I.P.C. and 113-B of Evidence Act has neither been explained nor defined either in I.P.C. or in Evidence Act and the term “it is shown” that soon before her death the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand of dowry, as condition precedent for dowry death, shows that the factum of cruelty or harassment by the appellant with the deceased soon before death of deceased is not required to be proved by prosecution beyond reasonable doubt. This fact may be proved by the prosecution by showing the facts and circumstances soon before death of deceased. This fact may be proved by the prosecution by showing the facts and circumstances soon before death of deceased. In addition to above the term “soon before death” does not mean just before death or immediately before death of deceased, she was subjected to torture, cruelty or harassment by her in-laws due to demand of dowry. 24. Hon'ble Supreme Court while discussing the object and purpose of Section 304-B I.P.C. and the scope of relevancy and meaning of phrase “soon before death of deceased” contained therein, in Kans Raj vs. State of Punjab, (2000) 5 SCC 207 has held as under: “15. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. “Soon before” is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term “soon before” is not synonymous with the term “immediately before” and is opposite of the expression “soon after” as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be “soon before death” if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough. 16. No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty and harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman. The reliance placed by the learned counsel for the respondents on Sham Lal vs. State of Haryana, (1997) 9 SCC 759 : 1997 SCC (Cri) 759, is of no help to them, as in that case the evidence was brought on record to show that attempt had been made to patch up between the two sides for which a panchayat was held in which it was resolved that the deceased would go back to the nuptial home pursuant to which she was taken by the husband to his house. Such a panchayat was shown to have been held about 10 to 15 days prior to the occurrence of the case. There was nothing on record to show that the deceased was either treated with cruelty or harassed with the demand of dowry during the period between her having taken to the nuptial home and her tragic end. Such is not the position in the instant case as the continuous harassment to the deceased is never shown to have settled or resolved.” 25. Such is not the position in the instant case as the continuous harassment to the deceased is never shown to have settled or resolved.” 25. In Rajindar Singh vs. State of Punjab, AIR 2015 SC 1359 , three Judges Bench of Hon'ble Supreme Court while placing reliance on the law laid down in Kans Raj (Supra), affirming the law laid down in Surinder Singh vs. State of Haryana (2014) 4 SCC 129 and Sher Singh vs. State of Haryana, (2015) 3 SCC 724 and partly overruling the law laid down in Dinesh vs. State of Haryana, (2014) 12 SCC 532 has held as under: “......We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise. Coming now to the other important ingredient of Section 304B- what exactly is meant by “soon before her death”? 21. This Court in Surinder Singh vs. State of Haryana (2014) 4 SCC 129 , had this to say: “17. Thus, the words “soon before” appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words “soon before” is, therefore, important. The question is how “soon before”? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, “soon before” is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death. 18. In this connection we may refer to the judgment of this Court in Kans Raj vs. State of Punjab, (2000) 5 SCC 207 : 2000 SCC (Cri) 935, where this Court considered the term “soon before.” The relevant observations are as under: (SCC pp. 222-223, para-15) “15......... ‘Soon before’ is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term ‘soon before’ is not synonymous with the term ‘immediately before’ and is opposite of the expression ‘soon after’ as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be ‘soon before death’ if any other intervening circumstance showing the nonexistence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.” Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law.” 22. In another recent judgment in Sher Singh vs. State of Haryana, 2015 (1) SCALE 250 , this Court said: “We are aware that the word ‘soon’ finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304 or the suicide under Section 306 of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt.” (at page 262) 23. We endorse what has been said by these two decisions. Days or months are not what is to be seen. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word “soon” does not mean “immediate.” A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304B. 24. At this stage, it is important to notice a recent judgment of this Court in Dinesh vs. State of Haryana, 2014 (5) SCALE 641 in which the law was stated thus: “The expression “soon before” is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straight jacket formula can be laid down by fixing any time of allotment. It can be said that the term “soon before” is synonyms with the term “immediately before.” The determination of the period which can come within term “soon before” is left to be determined by courts depending upon the facts and circumstances of each case.” (at page 646) 25. We hasten to add that this is not a correct reflection of the law. “Soon before” is not synonymous with “immediately before.” (Emphasis supplied) 26. Lal Bahadur (PW-1), father of the deceased, in his examination-in-chief, stating that the deceased-Dhanpati was married to the appellant-Kamlesh Kumar in May, 1992, the appellant-Ram Shankar (since deceased) was her father-in-law whereas the co-accused- Ram Pyari was her sister-in-law (Nand), has stated that he had given sufficient dowry and gift at the time of marriage of his daughter. He further stated that the appellant used to harass and torture his daughter by demanding Rs. 20,000/- and one motorcycle as a dowry. He further stated that since he could not succeed to fulfill the said demand of dowry, the appellants had snatched the ornaments of the deceased and used to beat her. He further stated that the deceased was killed by setting her on fire in her matrimonial house within three years of her marriage. 20,000/- and one motorcycle as a dowry. He further stated that since he could not succeed to fulfill the said demand of dowry, the appellants had snatched the ornaments of the deceased and used to beat her. He further stated that the deceased was killed by setting her on fire in her matrimonial house within three years of her marriage. He, in his cross-examination, further stated that his daughter was not happy and again stated that after one year of her marriage the appellant-Kamlesh Kumar had asked him for Rs.2 0,000/- and one motorcycle as dowry. He further stated that the deceased had also told this fact when he had gone to her matrimonial house to take her back (Bidai). He further stated that when the appellant-Kamlesh Kumar had come to his house to take the deceased back (Bidai) he again put demand of said dowry. Harsh Bahadur (PW-2), brother of the deceased has also stated the fact of aforesaid demand of dowry as stated by Lal Bahadur (PW-1). Thus, it is clear that the appellants were continuously demanding Rs. 20,000/- and one motorcycle as a dowry from the deceased as well as her father, Lal Bahadur (PW-1) and due to its non-fulfillment they used to torture and harass her soon before her death. 27. At this juncture it is also pertinent to note that in most of the cases the dowry death of deceased is caused inside the house of the accused persons and all the relevant facts as well as incriminating evidence are only in the knowledge of the accused persons but they do not come forward to disclose the fact, happened to the deceased soon before her death. So the prosecution cannot be blamed to produce such evidence which is not in the possession and knowledge of prosecution witnesses. 28. In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 (10) SCC 681 where accused was charged for committing murder of his wife for want of dowry and it was established by the prosecution that shortly before the offence, he was seen with his wife inside his house where he and his wife were normally used to reside. 28. In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 (10) SCC 681 where accused was charged for committing murder of his wife for want of dowry and it was established by the prosecution that shortly before the offence, he was seen with his wife inside his house where he and his wife were normally used to reside. Hon'ble Supreme Court has held as under: “Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram vs. State of Himachal Pradesh, AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with ‘khokhri’ and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal vs. State of Maharashtra, (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. vs. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. Ravindra Prakash Mittal, AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu vs. Rajendran, (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.” (Emphasis supplied) 29. Coming again to the fact of this case, where the prosecution has successfully proved all the ingredients of Section 304-B I.P.C. Now a question arise as to whether the appellant, who was present at the time of occurrence with deceased has succeeded to rebut the presumption of law, as provided under Section 113-B of Evidence Act, by producing any cogent and reliable evidence. 30. The appellant-Kamlesh Kumar, in his statement under Section 313 of the Code, has specifically stated that he had given information of the occurrence to the concerned police station that the deceased had committed suicide in frustration due to denial of appellant to carry her Mumbai and she could not be saved as door of the room was locked by her. The appellant-Kamlesh Kumar, in his statement under Section 313 of the Code, has specifically stated that he had given information of the occurrence to the concerned police station that the deceased had committed suicide in frustration due to denial of appellant to carry her Mumbai and she could not be saved as door of the room was locked by her. To prove this fact neither the appellant nor any member of his family, who was present at place of occurrence, was examined by him before the trial Court. Jarmish Khan (DW-1), record keeper of police office Raibareli and H.C.P. Sri. Ram Sharma (DW-3), who were produced by the appellant, have proved Ext.Kha-1 G.D. Report No. 30 dated 24.02.1995 at 18:10 p.m. H.C.P. Sri. Ram Sharma (DW-3) has stated that on 24.02.1995 he was posted at Kotwali, Lalganj, District-Raebareli and at that time the appellant-kamlesh Kumar had filed a written information showing that his wife, Smt. Dhanpati had committed suicide by setting her on fire. He further stated that he had entered the contents of the said information in Ext.Kha-1 and informed the Police Inspector-Pritam Singh. 31. From perusal of the Ext.Kha-1, it is clear that the appellant-Kamlesh Kumar had also mentioned in his information that in the intervening night of the occurrence the appellant and deceased were sleeping together on one bed, the deceased had arisen in the morning but the appellant continued to sleep. It is further mentioned that at about 7:00 a.m. appellant's sister saw the burn smoke, awoke the appellant and raised alarm. Thereafter he, his sister-Ram Pyari (co-accused) and co-villagers-Ram Murti, Nanhe and so many villagers appeared there and saw that the room where the deceased was burning, was locked from inside. It is also mentioned in the said information that all the persons, who were present on the spot, had tried to cut and tore the door but could not succeed as handle of axe was broken. Thereafter they pulled down the door by spade and saw that the deceased had been completely burnt and died. It is further mentioned in Ext.Kha-1 that information was sent to his in-laws through his uncle. 32. Now the question arises whether the aforesaid explanatory evidence produced by the appellant to rebut the presumption of dowry death, is reliable and trustworthy. The appellant has not produced his uncle through whom he had sent information to the informant (PW-1). It is further mentioned in Ext.Kha-1 that information was sent to his in-laws through his uncle. 32. Now the question arises whether the aforesaid explanatory evidence produced by the appellant to rebut the presumption of dowry death, is reliable and trustworthy. The appellant has not produced his uncle through whom he had sent information to the informant (PW-1). According to Dr. R.B. Verma (PW-3) the deceased was completely burnt but he in his cross-examination had denied the presence of any smell of kerosene oil. Investigating Officer, Rajendra Kumar Pandey (PW-6) who visited the place of occurrence did not find any inflammable materials such as Kerosene oil, match box, dibri etc. He had also not found the broken handle of axe whereby the appellant and other persons were trying to cut the door. The appellant in his statement, recorded under Section 313 of the Code has also not explained the necessity of giving information to the concerned police station by mentioning exculpatory story if he had already sent his uncle to inform the informant (PW-1). 33. In addition to above, site plan (Ext.Ka-11) shows that the deceased was burnt at ‘X’ place which is pucca room. The appellant had not produced any evidence that how many rooms were in his house and also not pointed out the place where he was sleeping with the deceased whereas from perusal of site plan (Ext.Ka-11) it transpires that most portion of the appellant's house is surrounded by thatched roof (chhappar). Lal Bahadur (PW-1) in his cross-examination has stated that the place where the deceased was burnt is pucca room having door and window situated in northern side of the house. This witness has also stated that one side of the appellant's house was raw (kachha) whereas one side was pucca and another side was damaged. 34. It is also pertinent to note at this juncture that the said occurrence was happened in the month of February having approximately temperature of 18 degree celsius in the night. The appellant and deceased were young married couples at the time of occurrence and were sleeping on same bed in the night of the occurrence. 34. It is also pertinent to note at this juncture that the said occurrence was happened in the month of February having approximately temperature of 18 degree celsius in the night. The appellant and deceased were young married couples at the time of occurrence and were sleeping on same bed in the night of the occurrence. It may be presumed that young couple of rural area in the month of February would sleep together at place having morality and secrecy and if there was only one pucca room in the house of the appellant it would be expected that they would not sleep outside the room where the co-accused and other family members/relatives were sleeping. In addition to above, Ram Baran (DW-2) in his cross-examination has also admitted that in the evening of the occurrence the appellant and the deceased had quarreled together. In such circumstances the defence of appellant that the deceased was sleeping with him in the night but she had committed suicide in another room, is not reliable. Further, the explanation of appellant that he was sleeping inside his house with the deceased and she awoke due to frustration, went into pucca room, bolted the door from inside and set herself on fire but she could not be saved and rescued by the appellant, his family members and co-villagers as she was completely burnt, is also neither trustworthy nor believable because if woman was burning inside the house of the appellant where the appellant and his family member were present, but they failed to experience bad smell caused by burning of the deceased, smoke or her cry and noise in the beginning of the said occurrence and also failed to make effective efforts to save her. Further more, the said occurrence was happened at or before 7:00 a.m. on 24.02.1995 but no information was given by the appellant to concerned police till 6:10 p.m. The conduct of appellant shows that during this period of twelve hours he was creating and manufacturing false evidence in his defence. 35. In addition to above, the written information/application filed by the appellant at concerned police station has neither been produced nor proved by the appellant before the trial Court. Mohd. Jarmish Khan (DW-1) and Ram Sharma (DW-3) proved an extract of General Diary (Ext.Kha-1) wherein extract of information, given by appellant was entered by DW-3. 35. In addition to above, the written information/application filed by the appellant at concerned police station has neither been produced nor proved by the appellant before the trial Court. Mohd. Jarmish Khan (DW-1) and Ram Sharma (DW-3) proved an extract of General Diary (Ext.Kha-1) wherein extract of information, given by appellant was entered by DW-3. Non production of said written information before the trial Court amounts suppression of important fact which is fatal to explanation of appellant. Thus, in the light of law laid down by Hon'ble Supreme Court in Trimukh Maroti Kirkan (supra) explanatory evidence produced by the appellant is not reliable and trustworthy to rebut the statutory presumption of Section 113-B of Evidence Act and failure to produce the reliable evidence further strengthen the prosecution case. 36. So far as the submission of learned counsel for the appellant that since the informant (PW-1), father of the deceased had not made any complaint regarding demand of dowry and harassment caused by the appellants to any police authority prior to this occurrence, the prosecution story becomes doubtful, is concerned, the record shows that Lal Bahadur (PW-1) was illiterate person and belongs to a rural area. He has further stated that the appellants were well known to him earlier to the marriage of the deceased, as they were his old relatives, therefore there was no discussion on the point of dowry. 37. It is often seen that in rural areas where the bride groom’s family is well known to the family of the bride earlier to their marriage settlement, the bride and her parents do not agitate some problem and issues occurred between them with family of bride groom after her marriage as they believe that due to lapse of time the problem whether it is related to demand of dowry or otherwise, may be subsided or pacified in future. Parents of bride do not want to interfere in such disputes. The poor and helpless father of the bride used to prefer to remain as a silent spectator in such disputes and avoid to complain to police authorities because he believes that such step may deteriorate the relationship of his daughter with her husband and in-laws. Parents of bride do not want to interfere in such disputes. The poor and helpless father of the bride used to prefer to remain as a silent spectator in such disputes and avoid to complain to police authorities because he believes that such step may deteriorate the relationship of his daughter with her husband and in-laws. Failure to take any legal step in such disputes against the in-laws of the deceased does not mean that neither dowry was demanded nor harassment or cruelty was committed to the deceased soon before her death. 38. Recently in Preet Pal Singh vs. Sate of U.P. AIR 2020 SC 3995, where Allahabad High Court had suspended the sentence of the appellant, convicted for the offence of dowry death, on the ground that no complaint for demand of dowry was made earlier by the father of the deceased, Hon’ble Supreme Court, setting aside the impugned order passed by this Court, has held as under: “42. From the evidence of the Prosecution witnesses, it transpires that the Appellant had spent money beyond his financial capacity, at the wedding of the victim and had even gifted an I-10 car. The hapless parents were hoping against hope that there would be an amicable settlement. Even as late as on 17.6.2010 the brother of the victim paid Rs. 2,50,000/- to the Respondent No. 2. The failure to lodge an FIR complaining of dowry and harassment before the death of the victim, is in our considered view, inconsequential. The parents and other family members of the victim obviously would not want to precipitate a complete break down of the marriage by lodging an FIR against the Respondent No. 2 and his parents, while the victim was alive.” (Emphasis supplied) 39. So far as the next submission made by learned counsel for the appellant that the F.I.R. was lodged by delay of 24 hours and without any explanation, is concerned, the record shows that Lal Bahadur (PW-1) was not present at the place of occurrence. He had come at the place of occurrence on 24.02.1995 at about 7:00 p.m. and lodged F.I.R. on the next day i.e. 25.02.1995 at about 6:30 a.m. The distance of place of occurrence from the concerned police station as shown in Ext.Ka-3 is 8 kms. No time limit has been prescribed for lodging the F.I.R. either in Evidence Act or in the Code. No time limit has been prescribed for lodging the F.I.R. either in Evidence Act or in the Code. The delay caused in lodging the F.I.R. depends upon facts and circumstances of the each case and if such delay is natural and reasonable, it cannot be treated fatal to the prosecution story. Hon’ble Supreme Court, on delay caused in lodging the F.I.R. in Tara Singh and Others vs. State of Punjab, AIR 1991 SC 63 has held as under:- “The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the” report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case.” (Emphasis supplied) 40. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case.” (Emphasis supplied) 40. Coming to the facts of this case again, Lal Bahadur (PW-1) (informant), in his cross-examination, stating that after receiving the information of the occurrence, has stated that he had reached the place of occurrence at 7:00 p.m. He further stated that he had gone to concerned police station on next day with one Devtadin he is not so educated and he got the information written by Devtadin because he could not write due to weak sight. This witness is father of the deceased. Looking to the brutal death of deceased, it might be possible that he would have become numb and so puzzled that he would not be in a position to take further step and if in such situation he could not reach the concerned police station to lodge the F.I.R. in the night, it cannot be said that the delay caused for lodging the F.I.R. is fatal to the prosecution. 41. Thus the prosecution has succeeded to prove that the deceased had died within seven years of her marriage due to burn injuries inside the house of the appellant and she was subjected to cruelty and harassment by the appellant due to demand of dowry soon before her death. The appellant has failed to produce any reliable evidence in his defence to rebut or explain the prosecution evidence in view of the statutory presumption as provided under Section 113-B of Evidence Act. Learned trial Court has elaborately discussed the evidence led by the prosecution in the light of argument advanced by learned counsel for both the parties. The impugned judgment is well discussed, well reasoned, it requires no interference and liable to be affirmed. 42. Now coming to the question of sentence whether sentence passed by the Trial Court, is just and proper or not. 43. Appellant has been convicted for the offence under Section 304-B and 498-A I.P.C. and under Section 4 of D.P. Act. He has been sentenced only for seven years rigorous imprisonment for the offence under Section 304-B I.P.C. for 2 years rigorous imprisonment and fine of Rs. 43. Appellant has been convicted for the offence under Section 304-B and 498-A I.P.C. and under Section 4 of D.P. Act. He has been sentenced only for seven years rigorous imprisonment for the offence under Section 304-B I.P.C. for 2 years rigorous imprisonment and fine of Rs. 1,000/- for the offence under Section 498-A I.P.C. and for one year rigorous imprisonment and fine of Rs. 1,000/- for the offence under Section 4 of D.P. Act. It has been further directed that all the sentences have to run concurrently. Thus the maximum sentence, awarded against the appellant, is seven years. 44. It is settled principle of sentencing and penology that undue sympathy in awarding the sentence with accused is not required. The object of sentencing in criminal law should be to protect the society and also to deter the criminals by awarding appropriate sentence. In this regard Hon'ble Supreme Court has observed in State of Madhya Pradesh vs. Saleem @ Chamaru, AIR 2005 SC 3996 which is as under:- “The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society's cry for justice against the criminal.” 45. Looking into the nature and gravity of the offence, I am of the view that the punishment awarded by the Trial Court is just and appropriate and requires no interference. Appeal is liable to be dismissed and impugned judgment and order passed by the learned Trial Court is liable to be affirmed. 46. In the light of above discussion, the appeal lacks merit and is hereby dismissed. The impugned judgment and order dated 19.01.2002 passed by Additional Session Judge/Fast Track Court-II, Raibareli in Sessions Trial No. 188 of 1995 (State vs. Ram Shankar and Others), is maintained and affirmed. 47. The appellant-Kamlesh Kumar is on bail. His bail bond is cancelled. He is directed to surrender before the concerned Court forthwith to serve out the aforesaid sentence. 48. 47. The appellant-Kamlesh Kumar is on bail. His bail bond is cancelled. He is directed to surrender before the concerned Court forthwith to serve out the aforesaid sentence. 48. Let a copy of this judgment along with lower court record be sent to the concerned Court for necessary information and compliance.