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2020 DIGILAW 1450 (ALL)

Shashi Kant v. State of U. P.

2020-12-08

VIRENDRA KUMAR SRIVASTAVA

body2020
JUDGMENT : 1. This appeal has been preferred against the judgment and order dated 18.5.1998, passed by Sessions Judge, Raebareli in S.T. No. 105 of 1995 arising out of Case Crime No. 23 of 1994, Police Station (in short 'P.S.') Mill Area, District Raebareli, whereby the appellant-Shashi Kant (hereinafter referred to as 'appellant') has been convicted and sentenced for seven years rigorous imprisonment for offence U/s 304-B I.P.C.; for three years rigorous imprisonment for offence U/s 498-A I.P.C. and for one year rigorous imprisonment for offence U/s 3/4 Dowry Prohibition Act (hereinafter referred to as 'D.P. Act'). All the sentences have been directed to run concurrently. 2. The prosecution story, in brief, is that Smt. Mamta Sharma (hereinafter referred to as 'deceased'), daughter of Balram (PW-2) was married with the appellant on 2.5.1993. The appellant, his mother Ram Bai (since acquitted), his father Lodheshwar (since acquitted) and his uncle Baleshwar (since acquitted) used to demand a scooter as dowry and were causing cruelty and harassment with deceased for non-fulfilling the demand of dowry. On 2.2.1994, deceased-Mamta got admitted in District Hospital, Raebareli with complain of consumption of poison and low general condition where she died on same day at 7:25 p.m. The death information report was sent from the District Hospital Raebareli to P.S. Kotwali, Raebareli. S.I. Sri Zafrul Haq (PW-6), conducted the inquest proceedings, prepared inquest report (Ex.Ka.5) and relevant police papers Ex.Ka.6 to Ex.Ka.9, sealed the dead body of the deceased and sent it for postmortem examination. 3. Dr. R.S. Agarwal (PW-3) and Dr. S.L. Sharma had conducted the postmortem examination of deceased on 3.02.1994 at 3:45 p.m. and prepared the postmortem report (Ex.Ka.2). According to him (PW-3), death of deceased could have occurred on 02.02.1994 at 7:25 p.m., the rigor mortis was present on all the four limbs; no external injury was found on the dead body and cause of death was not clear, as such, viscera of the deceased was preserved and sent for chemical examination. 4. According to him (PW-3), death of deceased could have occurred on 02.02.1994 at 7:25 p.m., the rigor mortis was present on all the four limbs; no external injury was found on the dead body and cause of death was not clear, as such, viscera of the deceased was preserved and sent for chemical examination. 4. Krishna Murari (PW-1), real brother of the deceased, filed a written information (Ex.Ka.1) before the Superintendent of Police, Raebareli, alleging that the deceased, aged about 18 years, was married to the appellant on 2.5.1993 and in her marriage, sufficient dowry was given to the appellant who was doing tailoring job at Raebareli, but he was not satisfied with the said dowry and was complaining with his (PW-1) sister that her (deceased's) parents had failed to give a scooter in dowry. It is further stated in the said written report that due to not giving the scooter in dowry, the appellant, along with Lodheshwar (father-in-law of the deceased) and Baleshwar (cousin father-in-law of the deceased) were annoyed. It is further submitted that on the eve of Makarsankranti festival (Khichdi), he (PW-1) had gone to her sister's matrimonial house to take off her (vidai) where the appellant, his parents and uncle had again put a demand for a scooter and some cash as a condition for sending her. It is further stated that due to non-fulfillment of dowry, the appellant and other co-accused (since acquitted) used to torture and harass the deceased but he (PW-1), pacifying anyhow the deceased, returned to his house. It is further stated that on 7.2.1994, his relative Ram Shankar informed him that his sister had died whereupon, he rushed from his village. It is further stated that his sister was killed by her husband (appellant), her mother-in-law, her father-in-law and cousin father-in-law for want of dowry, by administering poison to her and on 7.2.1994, he had gone to P.S. Mill Area, but no action was taken. 5. On the said information (Ex.Ka.1), Station House Officer, P.S. Mill Area was directed by the Superintendent of Police, Raebareli to lodge the first information report and to investigate the matter. 5. On the said information (Ex.Ka.1), Station House Officer, P.S. Mill Area was directed by the Superintendent of Police, Raebareli to lodge the first information report and to investigate the matter. In compliance of said direction, the said information was entered in Police General Diary (Ex.Ka.4) on 9.2.2004, Chik Report (Ex.Ka.3) was prepared by Head Constable Surendra Prasad Jaiswal (PW-4) and a criminal case was registered under Section 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act against the appellant and other co-accused. Investigation of the case was handed over to Dy.S.P. Lalit Kumar Singh (PW-5) who perused the inquest report and other relevant police papers (Ex.Ka.5 to Ex.Ka.9), visited the place of occurrence, prepared site plan (Ex.Ka.10), recorded the statement of witnesses and filed a charge-sheet against co-accused Lodheshwar, Baleshwar and Smt. Ram Bai. Later on, the investigation of the case was transferred to Dy.S.P. Mrigendra Singh (PW-8) who filed a charge-sheet (Ex.Ka.13), against the appellant Shashi Kant, before the concerned Magistrate who took the cognizance of offence and since the offence was exclusively triable by Court of Session, after providing the copies of necessary police papers as required under Section 207 of the Code, committed the case for trial to court of Session, Raebareli. 6. Charges were framed against the appellant along with co-accused for the offence U/s 304 B, 498-A I.P.C. and Section 3/4 Dowry Prohibition Act. 7. The appellant and other co-accused denied the said charges and claimed for trial. 8. The prosecution in order to prove its case examined Krishna Murari (PW-1/informant), Balram (PW-2), Dr. R.S. Agarwal (PW-3), Head Constable Surendra Prasad Jaiswal (PW-4), Dy.S.P. Lalit Kumar Singh (PW-5), S.I. Sri Zafrul Haq (PW-6), Vinod Kumar Sharma, Scientist Forensic Science Laboratory, Lucknow (PW-7) and Dy.S.P. Mrigendra Singh (PW-8). PW-1 and PW-2 are witnesses of fact, whereas, rest witnesses are formal witnesses. 9. Trial Court, in addition to above witnesses also examined C.W-1 Badharauddin, Ward Boy, District Hospital, Raebareli. 10. Upon conclusion of prosecution evidence, the statement of appellant and other co-accused were recorded under Section 313 of the Code, to explain the prosecution evidence, wherein, the appellant and other co-accused denied the prosecution evidence and claimed that they had been falsely implicated. Trial Court, in addition to above witnesses also examined C.W-1 Badharauddin, Ward Boy, District Hospital, Raebareli. 10. Upon conclusion of prosecution evidence, the statement of appellant and other co-accused were recorded under Section 313 of the Code, to explain the prosecution evidence, wherein, the appellant and other co-accused denied the prosecution evidence and claimed that they had been falsely implicated. Co-accused Lodheshwar further stated that the dead body of the deceased was given in his custody with the consent of father of the deceased and there was no dispute regarding death of deceased but the brother of the deceased annoyed due to dispute, arose for returning the jewelry of deceased and lodged the F.I.R. Co-accused Baleshwar further stated that he was residing separately from co-accused Lodheshwar and he had no concern with him. The appellant and other co-accused Smt. Ram Bai did not state anything more except denial to the prosecution evidence. 11. Upon conclusion of the trial, the learned trial Court acquitted the co-accused Lodheshwar, Ram Bai and Baleshwar but convicted and sentenced the appellant-Shashi Kant by the impugned judgment and order. 12. Aggrieved by the said judgment and order, this criminal appeal has been preferred. 13. Heard Sri S.H. Ibrahim, learned counsel for the appellant, Sri Tilakraj Singh, learned A.G.A. assisted by Sri Hari Kant, brief holder for the State. 14. 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 due to mistake, the deceased, had sou-motto consumed some poisonous substance/pesticides and died in the night of 02.02.1994. Learned counsel further submitted that in order to save the life of the deceased, the appellant took her away to District Hospital but she could not be saved during the treatment. Learned counsel further submitted that the information was given by the appellant to the father of the deceased who also participated in her cremation. Learned counsel further submitted that after seven days of the death of deceased, a false report, in order to grab the money, was lodged by Krishna Murari (PW-1), brother of the deceased. Learned counsel further submitted that the information was given by the appellant to the father of the deceased who also participated in her cremation. Learned counsel further submitted that after seven days of the death of deceased, a false report, in order to grab the money, was lodged by Krishna Murari (PW-1), brother of the deceased. Learned counsel further submitted that no plausible explanation has been given by the prosecution for such huge delay in lodging the F.I.R. Learned counsel further submitted that the prosecution has also failed to prove the factum of demand of dowry as well as harassment soon before the death of the deceased. Learned counsel further submitted that the trial Court without considering the material and evidence available on record had, in cursory and illegal manner, passed the impugned judgment and order, and convicted the appellant which is against the settled provision of law and is liable to be set aside. 15. Per-contra learned A.G.A., vehemently opposing the submission made by learned counsel for the appellant, has submitted that admittedly the deceased had administered poisonous substance in the house of the appellant and died within seven years of her marriage. Learned A.G.A. further submitted that harassment and torture was caused to her, soon before her death for demand of dowry. Learned A.G.A. further submitted that delay in lodging the F.I.R. has been properly explained by the prosecution and no explanatory evidence, to rebut the statutory presumption of Section 113-B of Evidence Act has been produced by the appellant. Learned A.G.A. further submitted that the deceased had died within one year of her marriage but no evidence has been produced by the appellant regarding the manner and cause of death of the deceased. Learned A.G.A. further submitted that the impugned judgment and order has been passed by the learned trial Court in view of the settled provision of law and no interference is required at this stage. 16. I have considered the rival submission made by the learned counsel for the parties and peruse the record. 17. Learned A.G.A. further submitted that the impugned judgment and order has been passed by the learned trial Court in view of the settled provision of law and no interference is required at this stage. 16. I have considered the rival submission made by the learned counsel for the parties and peruse the record. 17. 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 498A 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. 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; or (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; or (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." 18. The above provision, related with dowry death, clearly shows that if the death of any woman 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 or in connection with any demand for dowry, the Court shall presume that such accused had caused the dowry death. 19. Admittedly, the appellant is the husband of deceased-Mamta who had died within one year of her marriage. This fact has been admitted by the appellant in his statement under Section 313 of the Code. Thus, it has only to be seen whether any cruelty or harassment has been caused to the deceased soon before her death due to demand of dowry or not. 20. 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. 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. 21. 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. "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 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. 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. 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 v. 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." 22. 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 Surindra 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. 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 v. 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. 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 v. 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. 222-23, para 15) "15. ... 18. In this connection we may refer to the judgment of this Court in Kans Raj v. 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. 222-23, 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. 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. 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. 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 v. 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. 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 v. 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". 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) 23. Krishna Murari (PW-1) brother of the deceased, while stating that his sister was married with the appellant on 2.5.1993, has also stated that at the time of marriage, there was demand of scooter by the appellant and other accused person which could not be fulfilled by him. He further stated that after one month of her marriage, his sister came back and complained that due to non-fulfillment of dowry, the appellant and other accused person were causing harassment and torture with her. He further stated that after gauna, his sister came back and told him that the appellant and other accused were demanding a scooter and some money but he could not fulfill their demand due to his poor economic condition. He further stated that after her gauna, he went to take off (vidayee) his sister at Navratri and she again complained that their in-laws were harassing and torturing her for scooter and money. He further stated that just before 15 days to death of deceased Mamta Sharma, the appellant Shashi Kant had come to his (PW-1) house to take the deceased back and also asked for a scooter but he (PW-1) said that he could not fulfill the demand, thereupon he (appellant) got annoyed and took the deceased back. He further stated that on 3.2.1994, a person came on motorcycle and told him that his sister was ill and admitted in a hospital. Thereafter, his father went along with that person and when he returned he (PW-1) was told that deceased was caused to death by administering the poison. 24. Balram (PW-2), father of the deceased, has also stated that deceased was married with the appellant in the year 1993 and after her marriage, the appellant and other co-accused were demanding a scooter as a dowry. This witness further stated that for non-fulfillment of demand of scooter and money, the appellant and other accused person used to beat, torture and harass the deceased. This witness further stated that for non-fulfillment of demand of scooter and money, the appellant and other accused person used to beat, torture and harass the deceased. He further stated that after 15-20 days of death of deceased, he was informed by an unknown person and upon that information he had gone to postmortem house where he became very aggrieved. He further stated that people, present there, had forcefully received his signature on a plain paper. He further stated that the said people were saying that the deceased had administered poison and died. He further stated that he had learnt that Lodheshwar (co-accused) and other person were approaching the senior officer. He further stated that he was also present at the time of cremation and returned at 12:00 a.m. in the night. 25. Thus, in view of the statement of Krishna Murari (PW-1) and Balram (PW-2) it is clear that the deceased was taken back by appellant to his house just 15 days before her death and the appellant was demanding a scooter and money as a dowry from the deceased, her brother (PW-1) and father (PW-2) and due to its non-fulfillment, the appellant and other accused person were causing harassment and torture the deceased soon before her death. 26. At this juncture it is also pertinent to note that in most of the cases the death of married woman for want of dowry 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. 27. 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. 27. 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 v. 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 v. 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. v. 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 v. 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) 28. Coming again to the facts of this case, according to the prosecution evidence, at the time of her death, the deceased was with the appellant in her matrimonial house. According to Dr. R.S. Agarwal (PW-3), the cause of death of deceased was not known and her viscera was preserved for examination. 29. Vinod Kumar Sharma (PW-7), who has prepared Viscera Examination Report (Ex.Ka.12), has stated that the said viscera was related with Crime No. 23/1994, U/s 498-A, 304B I.P.C., P.S. Mill Area (State vs. Shashi Kant and others) and after examination of viscera, a poisonous substance i.e. Aluminum Phosphide was found in the said viscera. Thus, it is clear that the death of appellant was unnatural and caused by administration of a poisonous substance. 30. Thus, it is clear that the death of appellant was unnatural and caused by administration of a poisonous substance. 30. The prosecution has successfully proved all the ingredients of Section 304-B and Section 498-A I.P.C. as well as Section 4 of Dowry Prohibition Act. 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. 31. The appellant-Shashi Kant in his statement under Section 313 of the Code has denied the prosecution story, but he did not state any thing more as to why he has been falsely implicated. He has stated that the prosecution witnesses have given statement against him due to enmity and he did not want to lead any explanation or evidence in his defence. The appellant has not produced any defence evidence to rebut the presumption under Section 113-B of Evidence Act. 32. It is also pertinent to mention at this juncture that the poisonous substance, aluminium phosphide which was found in viscera report of the deceased is not usually available and kept in the house by any person. From perusal of site plan (Ex.Ka.10), prepared by the Investigating Officer, Dy.S.P. Lalit Kumar Singh (PW-5), it transpires that the said occurrence was caused inside the house of appellant and the appellant was residing there as tenant of one Raghunath Prasad Srivastava. Krishna Murari (PW-1) in his cross examination has stated that the appellant was permanent resident of village Hari Kusum Khera, P.S. Sareni, District Raebareli and were residing since 15-20 years in Raebareli city. He has further stated that co-accused Baleshwar was residing in Balapur (Raebareli) in a tenanted house and thereafter was residing in his own house. Thus, it is clear that appellant and his family member were not dealing with the business of such poisonous substance which was administered to the deceased. Further, they were also not doing the agricultural work, wherein, such type of pesticide is used. The deceased was a young lady, belonging to rural background, aged about 18 years at the time of occurrence and was caused to death within one year of her marriage and is not supported that she would go outside of her house in unknown new city to manage such poisonous substance. The deceased was a young lady, belonging to rural background, aged about 18 years at the time of occurrence and was caused to death within one year of her marriage and is not supported that she would go outside of her house in unknown new city to manage such poisonous substance. In such a situation, it becomes the bounden duty of the appellant to produce the evidence that in what circumstances, such poisonous substance was administered to the deceased inside his house. 33. In addition to above, neither the appellant Shashi Kant who is husband of the deceased nor any other co-accused who have been acquitted by the trial Court, had stated that how and when deceased was administered poisonous substance and in what condition and by whom the deceased was carried to the District Hospital for treatment. Non-disclosure of such important facts is fatal to the innocence of the appellant. Thus, in the light of law laid down by the Hon'ble Supreme Court in Trimukh Maroti Kirkan (supra) and failure to produce any evidence in defence by the appellant to rebut the statutory presumption of Section 113-B of the Evidence Act, further strengthen the prosecution case. 34. So far as the submission of learned counsel for the appellant that the F.I.R. was lodged by delay of seven days without any explanation, is concerned, Ex.Ka.1 shows that this written information was given to the Superintendent of Police, Raebareli which itself shows that the information given by Krishna Murari (PW-1) was not taken into consideration by the police of concerned police station. Further it has been specifically mentioned in Ex.Ka.1 that on 7.02.1994, the informant had approached P.S. Mill Area but no action was taken. The Trial Court in the impugned judgment and order had properly discussed not only the ground and explanation of delay but also the facts and circumstances of this case, in this regard. However, 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. However, 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." 35. Coming to the facts of this case again, Krishna Murari (PW-1) has stated that after getting the information of the occurrence, he had made written complaint at the concerned P.S. Mill Area and the concerned police inspector had assured him that he would make inquiry. Coming to the facts of this case again, Krishna Murari (PW-1) has stated that after getting the information of the occurrence, he had made written complaint at the concerned P.S. Mill Area and the concerned police inspector had assured him that he would make inquiry. He further stated that upon his assurance, he returned to his house but later on he learnt that no action was taken. Thereafter, he approached the Superintendent of Police and filed a written report (Ex.Ka.1). This witness was cross-examined by the defence counsel on the point of delay but nothing has come out in his cross examination whereby it can be shown that such delay was deliberately caused to rope the appellant falsely in this case. Thus in view of the fact and circumstances of this case, it cannot be said that the delay caused in lodging the F.I.R. is fatal to the prosecution case and hence there is no force in the submission of learned counsel for the appellant. 36. So far as the next argument of the learned counsel for the appellant that some of the accused namely Baleshwar, Lodheshwar and Rama Bai have been acquitted by the Trial Court on the same evidence but the appellant has been convicted, hence, the judgment of the trial Court is illegal, is concerned, record shows that the appellant is the husband of the deceased, whereas, other co-accused are father, mother and uncle of the appellant. 37. In Naresh Kumar vs. State of Haryana (2015) 1 SCC 797 , in a case where appellant's mother and brother were acquitted but only appellant was convicted for dowry death of his wife, on plea raised by appellant that his case was at par with his mother and brother, three judges bench Hon'ble Supreme Court dismissing the appeal has held as under:- "As regards the claim for parity of the case of the appellant with his mother and brother who have been acquitted, the High Court has rightly found his case to be distinguishable from the case of his mother and brother. The husband is not only primarily responsible for safety of his wife, he is expected to be conversant with her state of mind more than any other relative. The husband is not only primarily responsible for safety of his wife, he is expected to be conversant with her state of mind more than any other relative. If the wife commits suicide by setting herself on fire, proceeded by dissatisfaction of the husband and his family from the dowry, the interference of harassment against the husband may be patent. Responsibility of the husband towards his wife is qualitatively different and higher as against his other relatives." 38. In this case, a specific allegation of demand of scooter as dowry. has been made which usually was useless for other, co-accused who are parents and uncle of appellant Shashi Kant and such scooter was to be used only by the appellant. In addition to above, sufficient evidence was produced before the trial Court that co-accused Baleshwar, uncle of the appellant was residing separately and no specific allegation was made against him for demand of scooter. The trial Court has also found that general allegations were made against co-accused Smt. Ram Bai, Lodeshwar who were parents-in-law of the deceased. Thus the other co-accused were on different footing, having different role in the case whereas appellant Shashi Kant, being husband of deceased having specific role, was more responsible than the other co-accused in the facts, circumstances and nature of this case. It is settled principle of criminal jurisprudence that convicted accused, having different role, cannot be acquitted only on the ground of other co-accused who have been acquitted by trial Court. 39. In view of the above, merely on the ground that the prosecution has failed to produce cogent evidence against other co-accused, it cannot be held that appellant-Shashi Kant, who is the husband of the deceased, is also entitled for any relief. 40. Thus the prosecution has succeeded to prove that the deceased had died within seven years of her marriage, by administering the poisonous substance 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 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. 41. Now coming to the question of sentence whether sentence passed by the Trial Court, is just and proper or not. 42. Appellant has been convicted for the offence under Section 304-B , 498-A I.P.C. and Section 3/4 D.P. Act. He has been sentenced only for seven years rigorous imprisonment for the offence under Section 304-B I.P.C., for 3 years rigorous imprisonment for the offence under Section 498-A I.P.C. and for 1 year rigorous imprisonment for the offence under Section 3/4 of D. P. Act. It has been further directed that all the sentences shall run concurrently. Thus the maximum sentence, awarded against the appellant, is seven years. 43. 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.'' 44. 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. 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. 45. In the light of aforesaid discussion, the appeal lacks merit and is hereby dismissed. The impugned judgment and order dated 18.5.1998, passed by Session Judge, Raebareli in Session Trial No. 105/1995 (State vs. Lodeshwar and others), is maintained and affirmed. 46. The appellant-Shashi Kant is on bail. His bail bond is cancelled. He is directed to surrender before the concerned Court forthwith to serve out the aforesaid sentence. 47. Let a copy of this judgment along with lower court record be sent to the concerned Court for necessary information and compliance.