JUDGMENT : 1. This appeal has been preferred against the Judgment and order dated 30.10.2014 passed by the Additional Sessions Judge, Room No.09, Budaun in Sessions Trial No. 146 of 2011 arising out of Case Crime No. 1649 of 2010 under Sections 498A, 304-B I.P.C. and 4 of Dowry Prohibition Act, Police Station Ujhani, District Budaun. 2. Facts emerging from the prosecution story are that complainant Smt. Bhagwan Devi wife of Gendan Lal, resident of Village Khaspur Gautiya, Police Station Kunwargaon, District Budaun moved an application under Section 156 (3) Cr.P.C. before the Chief Judicial Magistrate, Budaun with the allegations that complainant's daughter Reshamwati aged 19 years was married to accused-appellant Talewar on 7.5.2009. She, according to her status, had given cycle, T.V. all other necessary articles and Rs.50,000/- in cash. Her daughter used to go and come to her matrimonial home. Her daughter told her that her in-laws pester her and demanded dowry, motorcycle and a buffalo and if she would not bring they would done her to death. The complainant along with others went to make settlement with in-laws of her daughter but they were adamant to demand said dowry. Complainant told that she had given enough dowry according to her status and she had no capacity to give more dowry. Complainant's son-in-law carried his wife Reshamwati on 30.5.2010 last time. Their son Bablu aged about 10 years also accompanied with them. On 11.6.2010 at about 5 p.m. one Aram Singh son of Nanhe resident of Junaiya told her that her daughter was done to death by her in-laws at about 12 noon and also locked her in a room. When complainant along with her husband, Munshilal of her in-laws and Har Nam Singh reached in-laws home of her daughter at about 6 p.m., husband of complainant found his daughter dead in the room and none of in-laws was found there. Her son Bablu were found on the spot and many persons gathered. Her son Bablu told that brother-in-law Talewar, Jaisingh (jeth) and Sukhi (jethani) being unanimous strangulated her; when he went to see in the room they made him to run away by beating him; and when he asked them later on, they told that his sister was sleeping in the room. Complainant alleged that her daughter was done to death by strangulation on account of non-fulfillment of demand of dowry. Complainant alleged that her daughter was done to death by strangulation on account of non-fulfillment of demand of dowry. The Chief Judicial Magistrate allowed the said application and directed the Station House Officer, Ujhani to investigate the matter lodging the First Information Report on the basis of which on 19.8.2010 at about 18.30 pm. chik First Informantion Report as Case Crime No.1649 of 2010 under Sections 304B, 498A I.P.C. and under Section 3/4 Dowry Prohibition Act was lodged. 3. After investigation, the police submitted charge sheet in the court. The Magistrate took cognizance, summoned the accused and finding the case to triable by sessions court committed it to the court of Sessions on 5.2.2011. The Sessions Court framed charges against accused Talewar and Jai Singh under Sections 498A, 304 B and in alternative under Sections 302/34 I.P.C. and Section 3/4 Dowry Prohibition Act, which were read over to the accused, who denied the charges and claimed trial. 4. Prosecution examined as many as seven prosecution witnesses, i.e., P.W.1 Smt. Bhagwan Devi (complainant), P.W. Gendanlal (husband of complainant), P.W.3 Bablu (son of complainant), P.W.4 Heeralal (independent witness), P.W. 5 Dr. R.K. Verma (who conducted post mortem report), P.W. 6 Munshilal (independent witness) and P.W. 7 Head Moharrir Akhlak Ali (Investigating Officer). 5. P.W. 1 Bhagwan Devi (mother of the deceased) stated that her daughter died two years ago. She was married to Talewar one year before her death. Her death occurred due to strangulation. She proved application under Section 156 (3) Cr.P.C. (Ext. Ka-1). She stated that she received information on the very same day when death of her daughter occurred due to strangulation. She had gone to the house of Talewar on the very same day and saw that corpse of her daughter was lying. Corpse was carried to Budaun, postmortem was conducted whereafter Talewar and others carried the corpse with them and performed last rites of the corpse, her husband and her other family members were present there, Talewar had performed last rites of the corpse. This witness further stated that she had got case lodged on saying of persons. She had spent one -half lakh rupees in the marriage. Clothes, jewellary, bed, cushion, watch, cycle etc were given in dowry. Her daughter lived one year in the house of Talewar. She had come to her home three times. She had come on teez, festivals and marriage occasions. She had spent one -half lakh rupees in the marriage. Clothes, jewellary, bed, cushion, watch, cycle etc were given in dowry. Her daughter lived one year in the house of Talewar. She had come to her home three times. She had come on teez, festivals and marriage occasions. She never spoke to her that Talewar had ever committed mar-peet with her. She did not know that she may be punished for telling a lie but she was aware that telling a lie is sin. When she lodged the report, the inspector came, investigated and asked when girl was married and how she died. The inspector had no diary. 6. P.W. 2, who was father of the deceased, namely, Gendanlal stated that name of his daughter was Reshamwati. Her marriage was performed with Talewar one and half year before the incidence. He performed marriage as per Hindu rites. He stated that he had given dowry in the marriage of the Reshamwati as per his status. He had given Rs.50,000/- in cash, cycle, T.V. and necessary domestic articles. Accused Talewar, Jai Singh (jeth of Reshamwati) and other in-laws were happy and satisfied with the dowry. This witness further stated that his daughter used to come and go to his house and was happy. After marriage, neither Reshamwati had not complained to him or none of his family about demand of motor cycle and buffalo as additional dowry by husband and in-laws nor any of the in-laws put any type demand nor his daughter was tortured physically or mentally by her husband or in-laws for dowry. No issue of one and half year was born to Reshamwati for which she was annoyed. Accused had never demanded additional dowry from him. Talewar was only dependent on fields besides which he had no other source of income for which Talewar and Reshamwati used to remain disturbed. His daughter Reshamwati died two and half years ago. How she died, he did not know. On death of Reshamwati, on information being furnished by Talewar and his family members, he and others went to in-laws house of the deceased, where Talewaar and his family members were mourning over the corpse of Reshamwati and all were present near the corpse. After death of Reshamwati, police came into the village. Thereafter, proceedings of panchayatnama was conducted in which he was made a witness. After death of Reshamwati, police came into the village. Thereafter, proceedings of panchayatnama was conducted in which he was made a witness. This witness further stated that death of his daughter Reshamwati was not committed by her husband Talewar and jeth Jai Singh conspiring with their family members. 7. P.W. 3 Bablu aged about 13 years stated that Reshamwati was his sister. Her marriage was performed with Talewar. He further stated that his parents had given articles loading in tractor trolley. Clothes, utensils, bed, almirah, T.V. and jewellary were given. Money were given at the time vidai (see off). Cycle was also given. Talewar never used to beat his sister. He used to visit her sister's house. When his sister died, he was at his house. She died after one-two year of the marriage. She was suffering from fever and she died. Case was registered by his father. He did not know whether postmortem was conducted or not. He had not gone at the time of postmortem. He had not visited the house of his sister, therefore, he was unable to tell whether the police had reached or not and police came to his parent is not known to him. 8. P.W.4 Heeralal stated that name of Talewar's wife was Reshamwati who was aged about 22-23 years. She was married one-two years ago when she died. He also stated that when Reshamwati died, he had gone to see her. Her corpse was lying on the ground. He had not seen any injury on her dead body. He had not seen any ligature mark on the neck. Inspector had visited the place of occurrence who interrogated all the persons. He was also interrogated by the Inspector and what he stated was reduced in writing. 9. P.W. 5 Dr. R.K. Verma conducted the postmortem of the deceased who stated in his statement that eyes of the corpse were closed and congested; face was also congensted; nose was bleeding; there were ligature marks on both sides of the neck, which was 4cm below the ears; same was appearing very near to left ear and below the thyroid gland. Thus, the doctor opined that the death of the deceased to be unnatural and have occurred due to strangulation. 10. Thus, the doctor opined that the death of the deceased to be unnatural and have occurred due to strangulation. 10. P.W.6 Munshi Lal is a formal witness, who stated that when he reached the place of occurrence, police was already present there which did proceedings of panchayatnama, he was made a witness to the panchayatnama on which he put his signature. 11. P.W. 7 Head Constable Akhalak Ali is also a formal witness, who proved the relevant documents such as prepared by him. 12. Statements of accused were recorded under Section 313 Cr.P.C. in which they denied the facts of incidence and alleged that statements of witnesses are wrong and on account of acrimony, the case is being conducted. At last, they stated that they are not guilty. They examined D.W.1 Jalim Singh and D.W.2 Raja Ram in defence and no other oral or documentary evidence was produced by them. 13. After hearing the prosecution and defence counsel, the learned Sessions Judge, vide Judgment and order dated 30.10.2014, exonerated accused Jai Singh of the charges under Sections 498A, 304B I.P.C. and 3/4 of Dowry Prohibition Act. Further the learned Sessions Judge convicted the accused appellant Talewar under Section 304-B I.P.C. and sentenced him to undergo life imprisonment; he further convicted him under Section 498-A I.P.C. and sentenced to undergo three years' rigorous imprisonment with fine of Rs.3,000/- and in case of default of payment of fine, to undergo further three months' simple imprisonment; and he further convicted the accused-appellant under Section 4 of Dowry Prohibition Act and sentenced to undergo one year rigorous imprisonment with fine of Rs.1,000/- and in case of default of payment of fine, to undergo further one month simple imprisonment. 14. Being dissatisfied with the conviction and sentence, the accused-appellant Talewar is being this Court by way of present appeal. 15. Heard learned counsel for the appellant and learned A.G.A. for the State. 16. Learned counsel for the appellant Talewar states that death was not so gruesome that leniency may not be shown to the accused. It is submitted that all the witnesses have practically turned hostile and it is a moral conviction. The accused is in jail for ten years. Learned counsel, therefore, prays for mercy, sympathy and lessor punishment for which he has relied on the following decisions:- 1. Hem Chand Vs. State of Haryana, (1994) 6 SCC 727 2. Hari Om Vs. It is submitted that all the witnesses have practically turned hostile and it is a moral conviction. The accused is in jail for ten years. Learned counsel, therefore, prays for mercy, sympathy and lessor punishment for which he has relied on the following decisions:- 1. Hem Chand Vs. State of Haryana, (1994) 6 SCC 727 2. Hari Om Vs. State of Haryana and another, (2014) 10 SCC 577 3. Sunil Dutt Sharma Vs. State (Government of NCT of Delhi), (2014) 4 SCC 375 4. Kashmira Devi Vs. State of Uttarakhand and others, (2020) 11 SCC 343 17. Learned A.G.A. vehemently opposed the reduction and sentence awarded to the accused-appellant and submitted that in this case, there is brutality in causing death and it is dowry death. Death was committed immediately within two years of the marriage which shows premeditation. 18. Most of the witnesses have not supported case of the prosecution is a fact which emerges on the record and the learned Judge had convicted the accused on the basis of the autopsy report that he had done her to death by strangulation and he has brought certain facts on record that incident occurred on the spur of the moment, which was not intentional. 19. Learned Trial Judge has relied on the decision of the Apex court in the case of Dev Narain Mandal Vs. State of U.P., Surjit vs. Nahar rai, State Vs. Vinod Kumar and Heeralal, 2012 (6) SCC 770 and punished him for life imprisonment under Section 304-B. But, totality of the circumstances would not permit us to inflict or concur so as to hold the accused guilty of such gravity that he requires to be punished with the maximum of sentence awardable to him, i.e., life imprisonment. We would substitute it to ten years' incarceration under Section 304-B I.P.C. 20. We may deem it fit to rely on the decisions and award sentence of ten years' rigorous imprisonment with remissions as awarded in the case of Hem Chand Vs. State of Haryana and other Judgments referred hereinabove as far as Section 498A I.P.C. is concerned. The accused has already been in jail. If he has not deposited fine, the default sentence would begin after he has completed three years of incarceration. 21. As far as conviction under Section 4 of Dowry Prohibition Act is concerned, punishment was for one year which he has already undergone. The accused has already been in jail. If he has not deposited fine, the default sentence would begin after he has completed three years of incarceration. 21. As far as conviction under Section 4 of Dowry Prohibition Act is concerned, punishment was for one year which he has already undergone. He is now not required to undergo imprisonment further as we have substituted the sentences awarded under Sections 304-B and 498-A I.P.C. We hold that sentences shall not be one after the other but would be simultaneous. 22. Period of punishment under Section 4 of Dowry Prohibition act is already over. If period of ten years' incarceration is over and accused-appellant is not required in any other case, he be released from jail forthwith. 23. Lower court record be sent to the court below forthwith. 24. Appeal is partly allowed in the light of the observations made hereinabove. 25. Let a copy of this Judgment be sent to the Jail Authorities concerned and District Magistrate for compliance.