JUDGMENT : Shree Chandrashekhar, J. In Jasidih PS Case No. 180 of 2007 which was lodged on the basis of fardbeyan of Firoz Ansari, the appellants, namely, Lukman Ansari @ Lukman Mian, Ajhola Bibi @ Ajhola Khatoon, Kalim Ansari @ Md. Kalim Ansari and Jamir Mian were named as the accused persons who have committed dowry death of Tamanna Bibi. After the investigation a charge sheet was submitted and the accused persons have faced the trial on the charge under section 304-B IPC. 2. In Sessions Case No. 271 of 2008, the appellants have been convicted and sentenced to imprisonment for life under section 304-B IPC. 3. The case of the prosecution is that Tamanna Bibi was married to Jamir Mian on 15.07.2006 and immediately after the marriage Jamir Mian, Lukman Ansari who is the father-in-law, Ajhola Bibi who is the mother-in-law and Kalim Ansari who is the brother-in-law, started demanding colour TV, motorcycle etc. and in connection to the demand of dowry they harassed and tortured Tamanna Bibi and finally on 16.07.2007 she was murdered and her dead body was set on fire by them. 4. During the trial the prosecution has examined 10 witnesses out of whom PW-1, PW-5, PW-7 and PW-10 are the related witnesses. PW-3 and PW-4, the co-villagers, have not supported the prosecution and they were declared hostile. PW-2 and PW-6 are also co-villagers of the accused persons and they have supported the prosecution on demand of dowry, harassment and torture of Tamanna Bibi in connection to the demand of dowry by the appellants. The Investigating Officer has examined himself as PW-8 and the doctor who has conducted the postmortem is PW-9. 5. The prosecution has proved that Tamanna Bibi has died a homicidal death in her matrimonial home and this part of the evidence has remained unchallenged. 6. PW-9, Dr. Ram Chandra Prasad who has conducted the postmortem examination on 17.07.2007 at about 13 : 10 PM has found 98% superficial burn injury on Tamanna Bibi. There was no sign of inflammation, the blisters were pale and scaly, and brain and meninges were congested. He has found hyoid bone, thyroid cartilage and cricoid cartilage fractured and all other vital organs like lungs, liver, spleen and both kidneys were congested. According to the doctor, the death has occurred on account of asphyxia due to throttling. There was no sign of inflammation, the blisters were pale and scaly, and brain and meninges were congested. He has found hyoid bone, thyroid cartilage and cricoid cartilage fractured and all other vital organs like lungs, liver, spleen and both kidneys were congested. According to the doctor, the death has occurred on account of asphyxia due to throttling. The aforesaid injuries particularly fracture of hyoid bone and thyroid cartilage are specific characteristic of strangulation by throttling. There were no carbon particles in trachea and in bronchioles which would support the prosecution story that after committing murder of Tamanna Bibi she was put on fire. This is further reflected in superficial burn injuries and the blisters being pale and scaly. The doctor has also stated that the burn injuries are post-mortem burn. 7. In order to prove demand of dowry, harassment and torture of Tamanna Bibi in connection to demand of dowry, the prosecution has laid evidence through PW-1, PW-2, PW-5, PW-6 and PW-7; PW-7 is father of Tamanna Bibi, PW-1 is her brother and PW-5 is her cousin brother. They are related witnesses but for that reason their testimony cannot be discarded. In State of Rajasthan v. Kalki reported in (1981) 2 SCC 752 , the Hon'ble Supreme Court has observed that a witness may be called interested only when he derives some benefit from the result of a litigation and in Waman v. State of Maharashtra reported in (2011) 7 SCC 295 , the Hon'ble Supreme Court has observed that if testimony of a witness is found to be consistent and true, the fact of being a relative cannot by itself discredit his evidence. In other words, the relation is not a factor to affect the credibility of a witness and all that is required to scrutinize evidence of a related witness is to take a little care. 8. PW-7, the informant has deposed in the Court that his daughter was married to Jamir Mian in the year 2006 and just after few days of marriage she came back and informed him that her husband and other family members are demanding motorcycle, colour TV, palang etc. About eight days prior to the date of occurrence her father-in-law brought her at his house and told him that unless his demand of dowry is fulfilled Tamanna shall stay with him. About eight days prior to the date of occurrence her father-in-law brought her at his house and told him that unless his demand of dowry is fulfilled Tamanna shall stay with him. He has further stated that though he could not arrange demands of the accused persons, on 16.07.2007 he sent his daughter with Aslam Ansari, his son, to her matrimonial home and in the evening he received a telephonic message from an unknown person that his daughter has been murdered by her in-laws. He has gone to Jhumarbad and found house of the accused persons closed. They had fled away from house and when the police arrived there doors of their house were opened. He has found his daughter dead in burnt condition and a jar of kerosene was lying there. PW-1 has corroborated the evidence of PW-7 by deposing in the Court that on 16.07.2007 he had taken his sister to her matrimonial home. There the appellants asked her why she has come empty handed and scolded her and in the same evening at about 5 : 00 PM a telephonic message came that his sister has been killed. He has stated that his sister told him about harassment and torture at the hands of her husband and other family members in connection to demand of colour TV, motorcycle, palang etc. PW-2 and PW-6 who are the co-villagers have also spoken about demand of dowry and harassment and torture of Tamanna Bibi at the hands of her husband and other family members. They are not the eye-witness and no incident of demand of dowry and torture has happened in their presence, still, their testimony can be used to corroborate the evidence of PW-1 and PW-7. The other co-villagers, PW-3 and PW-4, of the appellants have turned hostile but it is not uncommon that on account of various reasons the co-villagers would not come to the Court and give direct evidence against another co-villager. Their testimony however is not altogether irrelevant rather PW-3 and PW-4 both have supported the prosecution to a limited extent when they have stated in their examination-in-chief that brother of Tammana had brought her to her matrimonial house and Lukman Ansari and Ajhola Bibi have scolded her and that marriage of Tamanna Bibi was solemnized about 2 to 2 ½ years ago. 9. 9. From the aforesaid evidences the prosecution has established demand of dowry and harassment and torture of Tamanna Bibi at the hands of the appellants. PW-1 and PW-7 are the persons in whose presence demand of dowry and scolding of Tamanna Bibi, which of course would amount to harassment, had taken place. 10. In Baljeet Singh v. State of Haryana reported in (2004) 3 SCC 122 , the Hon'ble Supreme Court has held that on a conjoint reading of section 304-B IPC and section 113-B of the Indian Evidence Act it is clear that for drawing a presumption under section 113-B of the Indian Evidence Act firstly, there should be death of a woman otherwise than in normal circumstances within seven years of marriage and the prosecution having shown that soon before her death she was subjected to cruelty or harassment in connection with any demand of dowry by the persons accused of having committed the offence. 11. The expression “soon before her death” is a flexible one and no straight jacket formula can be evolved for arriving at a conclusion whether soon before her death a woman was subjected to harassment and torture in connection to demand of dowry; it would depend on the facts of a case. In Kamesh Panjiyar v. State of Bihar” reported in (2005) 2 SCC 388 , the Hon'ble Supreme Court has observed as under: “11…….. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.” 12. PW-1 and PW-7 are very specific and categoric on demand of dowry and abuse of Tamanna Bibi just eight days before the occurrence and also in the morning of 16.07.2007 when PW-1 had taken her to her matrimonial home. There is a live link between demand of dowry, harassment and torture in connection to demand of dowry and death of Tamanna Bibi. The narration of unfortunate events by PW-1 and PW-7 soon before the death of Tamanna Bibi would conclusively establish that there were incidences of her harassment and torture at the hands of her husband and other family members in connection to demand of dowry soon before her death and while so a presumption under section 113-B of the Evidence Act would arise if the prosecution establishes that she has died within seven years of her marriage. 13. Sri. 13. Sri. A.K. Kashyap, the learned senior counsel for the appellants submits that the prosecution has failed to establish by leading cogent evidence that death of Tamanna Bibi has occurred within seven years of marriage and she was harassed and tortured by the appellants in connection to demand of dowry soon before her death. 14. Mr. A.K. Kashyap, the learned senior counsel for the appellants has contended that the prosecution has failed to establish that the marriage of Tamanna Bibi was solemnized seven years before her death. With reference to the judgment in “Baljeet Singh”, the learned senior counsel has contended that none of the prosecution witnesses has given specific date, month and year of the marriage of Tamanna Bibi; the nikahnama which was produced through PW-10 was a forged document; Mr. Mokhtar Aalam Rizvi, the maulana who has written nikahnama was alive but not examined; nikahnama was not produced during the investigation and after about four years at the fag end of the trial and that too when all the prosecution witnesses were examined it was produced through PW-10, a distant relative of Tamanna Bibi. 15. The judgment in “Baljeet Singh” is an authority to the proposition that onus of proving that the marriage has occurred within seven years of occurrence cannot be shifted upon an accused. In paragraph 17 of the reported judgment, the Hon'ble Supreme Court has observed as under: “17. Having noticed the requirement of law both under Section 304-B IPC as also under Section 113-B of the Evidence Act, we are of the considered opinion that both the courts below erred in drawing an adverse presumption against the accused by shifting the onus on them to prove the date of marriage, which, in our opinion, is not the requirement of law. On the contrary, the law requires the prosecution to establish first by cogent evidence that the death in the case occurred within seven years of the marriage. Therefore, we will have to consider whether the prosecution has established the factum of Darshana having died within five years of her marriage as contended by PW 4. A perusal of his evidence shows that according to him marriage of Darshana was solemnized in the year 1982 but he was not aware which samvat it was. He says it was the month of Jaistha but was not sure whether it was Samvat 2035. A perusal of his evidence shows that according to him marriage of Darshana was solemnized in the year 1982 but he was not aware which samvat it was. He says it was the month of Jaistha but was not sure whether it was Samvat 2035. He specifically states that a bahi entry was made by his nephew Satbir in regard to the date of marriage and expenses incurred in connection therewith, but this document was not produced in the court. Existence of such a document is established not only from the evidence of PW 4 but also from the evidence of the investigating officer, PW 10 who says that he was made known of the existence of such a document but he did not either seize the said document or verify the date of marriage from the said document. He also states that he made an inquiry about the year of marriage of Darshana and nobody was able to tell the date but the year of marriage was told to him. He goes further to state that he did not record the statement of those persons who told him about the year of marriage. Therefore, it is clear that the prosecution has failed to produce the available ev-idence regarding the date of Darshana's marriage and thereby failed to discharge its initial onus of proof The defence in this case has unequivocally challenged the correctness of the date of marriage, as stated by the prosecution. It even examined defence witnesses in this regard. Be that as it may, the question whether the defence has been able to establish its version of the date of marriage is immaterial because in the first instance it was for the prosecution to establish this fact which for reasons stated above, it has failed to do. Both the courts below, thus, have clearly erred in shifting the onus of proving the date of marriage on the defence and drawing a presumption against it. This is evident from the finding of the trial court which is as follows: “Accused Baljeet in this case has not been able to rebut the mandatory presumption under Section 113-B of the Indian Evidence Act thus prosecution has been able to prove his guilt.” This finding which is concurred to by the High Court, in our opinion, is wholly erroneous and unsustainable in law.” 16. In the first place, we would like to say that there is no law under which the prosecution is required to produce documentary evidence to prove the date of marriage of the victim. The oral evidence as well as documentary evidence both are primary evidence and as section 59 of the Indian Evidence Act would say all facts except the contents of documents and electronic records can be proved by oral evidence. PW-2, PW-5 and PW-7 all have spoken about marriage of Tamanna Bibi in the year 2006 and PW-10 has stated that she was married with Jamir Mian on 15.07.2006. Besides the above the issue is clinched by the evidence of the doctor, PW-9, who has conducted the postmortem examination. PW-9 has stated that he has conducted the postmortem over dead body of a female aged about 20 years. In the face of such overwhelming evidences, it must be held that the prosecution has succeeded to establish that Tamanna Bibi has died within seven years of the marriage. 17. On the basis of the aforesaid materials brought on record, the prosecution has established that Tamanna Bibi has died a homicidal death in her matrimonial home within seven years of her marriage and soon before her death she was subjected to harassment and torture in connection to demand of dowry by the appellants who are her husband and relatives of the husband. 18. Accordingly, we hold that the charge under section 304-B IPC has been proved by the prosecution and therefore no interference is warranted with the judgment of conviction of the appellants in Sessions Case-No. 271 of 2008. 19. Mr. A.K. Kashyap, the learned senior counsel for the appellants has next contended that infliction of maximum punishment of RJ for life under section 304-B IPC upon the appellants is not proper. The learned senior counsel has relied on the judgment in V.K. Mishra v. State-of Uttarakhand reported in (2015) 9 SCC 588 . 20. Under section 304-B of the Penal Code, 1860 the minimum sentence is 7 years but it may extend to imprisonment for life. The expression “but which may extend to” reflects that maximum punishment cannot be awarded in a mechanical manner. 20. Under section 304-B of the Penal Code, 1860 the minimum sentence is 7 years but it may extend to imprisonment for life. The expression “but which may extend to” reflects that maximum punishment cannot be awarded in a mechanical manner. After weighing the evidences led by the parties if the Court finds that it is a case for imposing maximum punishment then only punishment of imprisonment for life can be awarded to an accused under section 304-B of the Penal Code, 1860. By now it has been fortified into a Court practice and as indicated under sub-section (3) of section 354 of the Code of Criminal Procedure that an accused should be offered an opportunity to lead evidence why maximum sentence should not be awarded to him, it is only after weighing the aggravating vis-a-vis the mitigating circumstances a decision is taken by the Court on quantum of punishment. 21. In Hem Chand v. State of Haryana reported in (1994) 6 SCC 727 , the Supreme Court has observed thus: ‘7. Now coming to the question of sentence, it can be seen that Section 304-B IPC lays down that: “Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A reading of Section 304-B IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the 7 Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B IPC also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied. In the instant case no doubt the prosecution has proved that the deceased died an unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that there is no charge under Section 302 IPC………………………………………Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.” 22. In State of Punjab v. Manjit Singh reported in (2009) 14 SCC 31 : AIR 2009 SC 2888 , the Supreme Court has observed thus: “12. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the IPC, the Code confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well the minimum punishment for the offence. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the IPC, the Code confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regarding to the aggravating and mitigating circumstances vis-a-vis an accused in each case.” 23. On a careful analysis of the evidences led by the prosecution and in view of the judgments on the point, we hold that award of maximum sentence of R.I. for life inflicted upon the appellants for the offence punishable under section 304-B of the Penal Code, 1860 is not proper and sustainable in law and, accordingly, it is set-aside. 24. Accordingly, the order of sentence dated 21.09.2012 passed by the learned 1st Additional Sessions Judge, Deoghar, in Sessions Case No. 271 of 2008 is set-aside. 25. The appellants, above-named, are convicted and sentenced to RJ for 10 years under section 304-B/34 IPC. 26. Mr. Abhay Kumar Tiwari, the learned APP states that the appellants, namely, Jamir Mian and Ajhola Bibi @ Ajhola Khatoon on completing their respective sentences, with remission, have been released. 27. The appellants, namely, Lukman Ansari @ Lukman Mian and Kalim Ansari @ Md. Kalim Ansari are in custody. 28. Accordingly, the appellants, namely, Lukman Ansari @ Lukman Mian and Kalim Ansari @ Md. Kalim Ansari who are in custody shall be set free forthwith, if not wanted in connection to any other criminal case. 29. In the result, Criminal Appeal (DB) No. 1117 of 2012 is partly allowed. 30. IA No. 4899 of 2020 stands disposed of. 31. Let lower Court records be transmitted to the Court concerned, forthwith. 32. Let a copy of the judgment be communicated to the trial Court through FAX.