JUDGMENT : Siddharth, J. 1. Heard Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Ram Singh Kushwaha and Sri Ankit Shukla, learned counsels for the appellant and learned A.G.A for the State. 2. Above criminal appeals have been preferred against the judgment and order dated 12.01.2001 passed by VIIth Additional Sessions Judge, Kanpur Nagar, in Session Trial No. 960 of 1995 by which the appellant, Akhilesh Kumar Mishra, has been convicted and sentenced for life under Section 304-B IPC, while appellants, Smt. Meera Jha and Jagdanand Jha, have been convicted and sentenced to 8 years rigorous imprisonment. All the appellants have been convicted and sentenced under Section 498-A IPC for 2 years rigorous imprisonment and under Section 4 of D.P. Act to undergo rigorous imprisonment for one year. The appellants are acquitted of alternative charge under Section 302 IPC. 3. Prosecution case is that informant, Shyam Shanker Mishra, married his daughter, Sudha, three years ago to the accused, Akhilesh Kumar Mishra. Rs. 51,000/- was given in cash and other goods were given in dowry but accused, Akhilesh Kumar Mishra, was demanding a motorcycle and a plot and was threatening to kill his daughter. Akhilesh Kumar Mishra and his Fufa, Jagdanand Jha, also used to come and threaten him. On 19.07.1994 at 6:00 p.m informant came to know that the accused, Akhilesh Kumar Mishra, his Fufa, Jagdanand Jha and Bua, Meera Jha, have murdered his daughter, Sudha and have ran away leaving her dead body behind. FIR dated 19.07.1994 was lodged on 20:55 registered at Police Station- Kakadev. 4. After committal, charges were framed under Sections 498-A/304-B IPC and alternative charges under Section 302 IPC and Section 4 of Dowry Prohibition Act were framed against accused persons. 5. Before the trial court, informant was examined as P.W.-1. His wife, Smt. Gambhira Devi, was examined as P.W.-2. Abdul Haq, was examined as P.W-3. Dr. D.K. Vaish, who conducted the post-mortem of dead body of the deceased was examined as P.W.-4. Milap Singh, Deputy Superintendent of Police, was examined as P.W.-5. 6. P.W.-1 stated in his statement before the trial court that he is resident of Bihar and is residing at Kanpur for last 14 years. He had one daughter, Sudha, the deceased, another daughter, Vinita and two sons, Ashutosh and Nyaytosh, and is wife is P.W.-2. Accused, Akhilesh Kumar Mishra, was residing with his Fufa, Jagdanand Jha and Bua, Meera Jha. P.W.-1 stated in his statement before the trial court that he is resident of Bihar and is residing at Kanpur for last 14 years. He had one daughter, Sudha, the deceased, another daughter, Vinita and two sons, Ashutosh and Nyaytosh, and is wife is P.W.-2. Accused, Akhilesh Kumar Mishra, was residing with his Fufa, Jagdanand Jha and Bua, Meera Jha. They also belong to Bihar. He saw accused, Akhilesh Kumar Mishra, in the house of Jagdanand Jha and in the presence of accused, Jagdanand Jha and Smt. Meera Jha, demand of Rs. 51,000/- as dowry was made and they agreed to the marriage of accused, Akhilesh Kumar Mishra, with his daughter, Sudha. He paid Rs. 8,000/- for making jewellery to the accused, Akhilesh Kumar Mishra and Rs. 25,000/- for expenses of marriage. After marriage the accused persons started demanding a motorcycle and also a plot of land. They started abusing the daughter of P.W.-1 and took away her clothes and jewellery. He went to meet his daughter but he was not allowed to meet her. Therefore, he lodged a complaint at Police Station-Kakadev, District- Kanpur Nagar. Accused, Jagdanand Jha, is working in UPSIDC and was quite influenced. Police got a compromise entered between the parties recorded at Police Station. Both the parties put their signatures thereon. Whenever, accused, Akhilesh Kumar Mishra, came to his house he demanded money. One and a half months prior to death of Sudha, Akhilesh Kumar Mishra, started living separately from her Bua and Fufa with the deceased. 10-12 days thereafter one bengali lady informed him that Sudha is ill. He went their to see her. Akhilesh Kumar Mishra again started talking about motorcycle and after reprimanding him he took Sudha to Dr. Devendra Kaur who informed that Sudha is pregnant and not ill. She is not getting sufficient food to eat. After 7-8 days one vegetable vendor informed that Sudha is ill. The informant, P.W.-1m reached the house of accused, Akhilesh Kumar Mishra and found his daughter lying dead. Her entire body had turned blue. He lodged the FIR before the police station in Bihari language and its translation has been filed before this court. He cremated his daughter but none of the accused joined the last rites of the deceased. Accused persons threatened him of withdrawing the case. P.W.-1 lodged a case against younger brother of Akhilesh Kumar Mishra, Kailash. He lodged the FIR before the police station in Bihari language and its translation has been filed before this court. He cremated his daughter but none of the accused joined the last rites of the deceased. Accused persons threatened him of withdrawing the case. P.W.-1 lodged a case against younger brother of Akhilesh Kumar Mishra, Kailash. Thereafter he lodged a complaint against accused, Jagdanand Jha, since he got his younger son, Nyaytosh abducted. Both the reports have been filed before the Court in evidence. 7. P.W.-2, Smt. Gambhira Devi, mother of deceased, proved that amount of Rs. 51,000/- was demanded by the accused person as dowry. They came to see her daughter and she welcomed them and gave them clothes, Rs. 1100/- was given in engagement and Rs. 51/- was given to accused, Jagdanand Jha. After 20 days, father of accused, Akhilesh Kumar Mishra, came and gave saaree and blouse to Sudha and Rs. 101/- in cash. Accused, Jagdanad Jha, demanded Rs. 8000/- for jewellery which she gave him in the presence of his wife. Again Jagdanand and Akhilesh Kumar demanded money. After sometime she gave them Rs. 5,000/-. After the marriage, accused persons, Jagdanand Jha and Akhilesh Kumar Mishra, came to her house and demanded motorcycle and a plot of land as precondition for taking Sudha to their house. When she refused to give motorcycle and plot, they abused her and Akhilesh Kumar Mishra also beated her. Accused persons used to beat her daughter and did not gave her food. When her daughter was 10 months pregnant, accused, Akhilesh Kumar Mishra, dropped her in her house where she gave birth to a female child. Akhilesh Kumar Mishra, refused to keep the female child and asked Sudha to kill her. After one month and 22 days he came and took her daughter and grand-daughter back. After killing her grand-daughter, he threw her on her door while her daughter was weeping outside. The doctor saw her grand-daughter and opined that she has been administered poison, hence she has died. Thereafter she used to go to meet her daughter and the deceased. She was ill and taken to Guru Nanak Hospital. The doctor informed that she is pregnant and not getting sufficient food. Accused, Akhilesh Kumar Mishra, used to fight with her daughter. The doctor saw her grand-daughter and opined that she has been administered poison, hence she has died. Thereafter she used to go to meet her daughter and the deceased. She was ill and taken to Guru Nanak Hospital. The doctor informed that she is pregnant and not getting sufficient food. Accused, Akhilesh Kumar Mishra, used to fight with her daughter. After coming to know of her death when she went to her matrimonial home and asked the accused person how she has died, they pleaded ignorance. 8. P.W.-3, Abdul Haq, was although declared hostile but he proved the fact that there was dispute between the parties regarding demand of dowry. 9. P.W.-4, Dr. K.K. Vaish, who performed post-mortem of the body of deceased, was examined before the trial court. He stated before the court that cause of death of deceased was not ascertained and therefore her viscera was preserved. He admitted that in the medical examination of viscera poison was not detected. He proved the post-mortem report before the court. The aforesaid witness was recalled but he only stated that he could not ascertain the cause of death of the deceased and therefore viscera was preserved. 10. P.W.-5, Investigating Officer, proved the investigation record and the statements of witnesses recorded by him. Statement of P.W.-6, Sub-Inspector was also recorded. Statements of accused persons were recorded under Section 313 Cr.P.C., wherein they denied allegations made against them. 11. Counsel for the appellant has submitted that the demand of dowry by the accused is not established by the prosecution in proximity to the time of death of deceased. There is inconsistency in the statement of P.W.-1 and P.W.-2 with regard to the amount of dowry demanded. The letter of deceased has not been corroborated by report of handwriting expert. Statement of P.W.-1 regarding alleged compromise entered between the parties at police station is contradictory. Before the death of deceased accused, Akhilesh Kumar Mishra and co-accused, Jagdanand Jha, and wife were living separately as accepted by P.W.-1. P.W.-3 has not supported the case set up by P.W-1 and P.W-2 and was declared hostile. Post-mortem report and viscera report do not suggests any poisoning of deceased. Death of deceased was not homicidal and she did not died unnatural death. 12. P.W.-3 has not supported the case set up by P.W-1 and P.W-2 and was declared hostile. Post-mortem report and viscera report do not suggests any poisoning of deceased. Death of deceased was not homicidal and she did not died unnatural death. 12. Counsel for the appellant has relied upon the judgment of the Apex Court in the case of Sandeep Kumar vs. State of Uttrakhand, AIR 2021 SC 491, in support of his contention. 13. Learned A.G.A has vehemently opposed the submission and has submitted that from the evidence of P.W-1 it is clear that within two months of the marriage of appellant demand of motorcycle and one plot was made by the accused persons from P.W.-1. When P.W.-1 was not permitted to meet his daughter, he had lodged a report at police station – Kakadev, District- Kanpur Nagar, against the accused persons but he was compelled to make compromise with the accused persons at police station. He has further submitted that P.W.-2 has also proved the allegation of demand of dowry against the accused persons. He has submitted that the conduct of accused persons is relevant since they never informed the father and mother of deceased after she died. P.W.-1 came to know from vegetable vendor about the death of daughter and went there. As per Section 106 of Indian Evidence Act the burden of proof was on the accused person to explain how the deceased died while living in their house. 14. Learned A.G.A has relied upon the judgment of the Apex Court in the case of Buddhadeb Saha and Others vs. State of Bengal, 2023 SCC Online SC 1457 and Devendra Singh and Others vs. State of Uttrakhand, 2022(2) Crimes 277 (SC). 15. After hearing the rival contentions, this court finds that as per Section 304-B IPC 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 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 of dowry, such death shall be called dowry death and such husband or relative shall be deemed to have caused her death. As per Section 113-B of Evidence Act, there is presumption against the accused of causing dowry death where it is shown that soon before her death such woman was subjected by such person to cruelty or harassment for, or in connection with, any demand of dowry. Section 304-B IPC read with Section 113-B of Evidence Act makes it clear that once prosecution has succeed in demonstrating that a woman has been subjected to cruelty or harassment for, or in connection with, any demand of dowry soon before her death, a presumption shall be drawn against the accused person however the accused can demonstrate before the trial court that the ingredients for constituting offence under Section 304-B IPC are not made out. 16. In the present case, it is clearly discernible that the deceased was being subjected to harassment for fulfilling the demand of one motorcycle and a plot of land soon after her marriage with the accused-appellant, Akhilesh Kumar Mishra. Initially, the accused persons refused to take her along to their house after marriage unless their demand of dowry is met as proved by P.W.-2 before the trial court. However, they took the deceased to her house and subjected her to cruelty. She gave birth to a female child who was allegedly done to death by the accused, Akhilesh Kumar Mishra or the child died for some other reason. The deceased prior to her death was taken to the doctor by P.W.-2, where the doctor opined that she was not ill but not getting sufficient food. The deceased has clearly died within 7 years of her marriage with the accused, Akhilesh Kumar Mishra and she was living with accused, Akhilesh Kumar Mishra only at the time of her death, separately from co-accused, Jagdanand Jha and Smt. Meera Jha. The cause of death was not ascertained but it will not make any difference since as per Section 304-B IPC where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of her marriage and it is proved that she was subjected to cruelty or harassment soon before her death, her death shall be called dowry death and her husband or relative of her husband shall be deemed to have caused her death. In the present case the death may have been caused by poisoning or any other reason but keeping in view the fact that the deceased was subjected to cruelty and harassment soon after her marriage and prior to her death, the presumption of causing dowry death is against the accused persons. The accused have not been able to rebutt the presumption under Section 113-B of Indian Evidence Act against them. 17. The argument of learned A.G.A that as per Section 106 of Indian Evidence Act, the burden of proving that death of deceased was caused by accused person with whom she last resided, would be attracted only against the accused-appellant, Akhilesh Kumar Mishra, with whom the deceased was living separately at the time of her death. The prosecution witnesses have admitted that the couple had separated from the co-accused, Jagdanand Jha and Smt. Meera Devi, one and one and a half months prior to her death. Therefore, at the time of her death the deceased was clearly residing with the accused-appellant, Akhilesh Kumar Mishra. 18. The argument of counsel for the appellant is that no sign of poisoning was found in the viscera of the deceased also deserves consideration. He has submitted that in the case of Buddhadeb Saha and Others (Supra), the Apex Court has held in paragraph 24 that in the case of poisoning white froth may come out from the mouth and nose of the deceased. In case of opium or its alkaloid the internal organs like stomach or lungs may be congested. On opening of stomach detectable smell may be found in cases of poison like organo phosphorus compound, opium, formaldehyde, etc. However, this court finds that in the same judgment of Apex Court in paragraph 25 it has been held that even if in the viscera report there is no poison found such death shall be covered under the phrase “otherwise that under normal circumstances” which means death not being in the usual course but apparently under suspicious circumstances. In the case of Bhupendra v. State of Madhya Pradesh reported in (2013) 4 Crimes 480 (Supreme Court) it was held that chemical examination of viscera is not mandatory in every case of dowry death. For the purpose of Section 304-B IPC mere fact of an unnatural death is sufficient to invite a presumption under Section 113-B of the Evidence Act. 19. For the purpose of Section 304-B IPC mere fact of an unnatural death is sufficient to invite a presumption under Section 113-B of the Evidence Act. 19. The Apex Court has considered the effect to negative viscera report in the case of dowry death in the aforesaid judgment in paragraph nos. 28 to 35 :- “28. In a research article titled, “Negative viscera report and its medico-legal aspects”, it has been mentioned that in many cases, the viscera report is negative on three major basis, namely it can be procedure based, sample based or lab based. The said research paper reveals that there are circumstances in which viscera test may not reveal the presence of compounds from the following circumstances:— 1. Sample quantities received by FSL much less than those prescribed for optimal analysis; 2. Required quantity and quality of preservative not used during sampling; 3. Appropriate temperature, time and container not maintained for preservation of sample; 4. Difficulty in detection of poison due to vomiting, purging or elimination from the system by the kidneys or due to prolonged stay in the hospital immediately prior to the death; 5. Not sending stomach wash (gastric lavage) and vomit along with viscera for examination; 6. Some organic poison decompose due to improper preservation or temperature control; 7. Site of sample collection on the body also play an important role; 8. In postmortem decomposition, many poisons present in the tissue undergo chemical changes which cannot be detected in routine toxicological analysis; 29. This Court in Mahabir Mandal v. State of Bihar, (1972) 1 SCC 748 , looked into the observations found at page 477 of the Modi’s Medical Jurisprudence and Toxicology (Seventeenth edition) and held that under some circumstances, if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption has been detoxified, conjugated and eliminated from the system by the kidneys and other channels, it is possible that there may not be traces of poison. 30. Thus, the absence of detection of poison in the viscera report alone need not be treated as a conclusive proof of the fact that the victim has not died of poison. 31. 30. Thus, the absence of detection of poison in the viscera report alone need not be treated as a conclusive proof of the fact that the victim has not died of poison. 31. In Mahabir Mandal (supra), this Court has ob- served as under:- “Empty reference has been made by Mr.Chari to report dated December 23, 1963 of the Chemical Examiner, according to whom no poison could be detected in the viscera of Indira deceased. This circumstance would not, in our opinion, militate against the conclusion that the death of the deceased was due to poisoning. There are several poisons particularly of the synthetic hypnotics and vegetable alkaloids groups, which do not leave any characteristic signs as can be noticed on post mortem examination." (Emphasis supplied) 32. The above observation of this Court was based on the reference made in the Modi's Medical Jurisprudence and Toxicology. Those references were also referred to by this Court, which are as follows:- “It is quite possible that a person may die from the effects of a poison, and yet none may be found in the body after death, if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption has been detoxified, conjugated and eliminated from the system by the kidneys and other channels. Certain vegetable poisons may not be detected in the viscera, as they have no reliable tests, while some organic poisons, especially the alkaloids and glu-cosides, may be oxidation during life or by putrefaction after death, be split up into other substances which have no characteristic reactions sufficient for their identification.” (Emphasis supplied) 33. As pointed out by this Court in a number of cases, where the deceased dies as a result of poisoning, it is difficult to successfully isolate the poison and recognise it. Lack of positive evidence in this respect would not result in throwing out the entire prosecution case, if the other cir-cumstances clearly point out the guilt of the accused. 34. According to Modi's Medical Jurisprudence and Toxicology, 23rd Edition, Editors : K. Mathoharan and Amrit K Patnaik, the preserved materials should be sent to the concerned Forensic Science Laboratory, through the concerned police station as quickly as possible. 34. According to Modi's Medical Jurisprudence and Toxicology, 23rd Edition, Editors : K. Mathoharan and Amrit K Patnaik, the preserved materials should be sent to the concerned Forensic Science Laboratory, through the concerned police station as quickly as possible. Otherwise, the poison may not be detected during the analysis of the viscera, even though they may contain some poison. 35. Ken Kulig MD, in Critical Care Secrets (Fourth Edition), 2007 states that the gastric lavage must be performed soon after ingestion to be at all effective in removing the drugs from the stomach. For this reason, many clinicians do not lavage patients who have overdosed if more than 1 hour has elapsed since ingestion. ” 20. Therefore, it is crystal clear that benefit of negative viscera report cannot be extended to the accused persons. 21. The facts of the case of Sandeep Kumar (Supra) relied upon by learned counsel for the appellant are different. In this case, no poison was found in the viscera but the doctor opined that the deceased was patient of Tuberculosis and the congestion in internal organs could be due to Tuberculosis. The deceased was also having below normal weight and therefore the court did not found to be established case of unnatural death. 22. However, this court finds that in the statements of P.W.-1 and P.W.-2 allegations of demand of dowry have been generally made against accused, Jagdanand Jha and specifically against accused, Akhilesh Kumar Mishra. At the time of death the deceased and her husband were residing separately from the accused, Jagdanand Jha and Smt. Meera Jha. There is no allegation that even after moving to separate accommodation the co-accused, Jagdanand Jha and Smt. Meera Jha, went to the house of deceased and co-accused, Akhilesh Kumar Mishra and harassed her on demanded any dowry from her. P.W.-1 and P.W.-2 have also not stated that after the couple separated the accused, Jagdanand Jha and Smt. Meera Jha, ever visited their place. It appears that their relations had deteriorated and it cannot be expected that the accused, Jagdanand Jha and Smt. Meera Jha, had any motive for demanding dowry and harassing the deceased since they may not have been beneficiary of any dowry once the couple had separated from them. Co-accused, Jagdanand Jha, was aged about 46 years in the year 2000 and now must be about 70 years of age. Co-accused, Jagdanand Jha, was aged about 46 years in the year 2000 and now must be about 70 years of age. His wife was aged about 35 years at that time and is now aged about 59 years. They are not the father and mother of accused, Akhilesh Kumar Mishra and are his Fufa and Bua. Even if the land demanded as dowry and motorcycle was given in dowry by P.W.-1, only accused, Akhilesh Kumar Mishra, would have been beneficiary of the same and not the other co-accused. 23. In view of the above consideration, the conviction of appellant, Akhilesh Kumar Mishra, who has preferred Criminal Appeal No. 472 of 2001 is confirmed. 24. However, we are of considered opinion that the trial court has awarded maximum sentence prescribed for offence under Section 304-B IPC to appellant, Akhilesh Kumar Mishra, without taking mitigating circumstances in the case into consideration like cause of death of the victim neither could be ascertained in post-mortem report nor in viscera examination report. No mark of violence was found on person of the deceased. Thus, the sentence is reduced from imprisonment to life to rigorous imprisonment of 10 years. The sentence awarded to the appellant, Akhilesh Kumar Mishra, stands modified accordingly. 25. He is on bail. His bail bond is cancelled and sureties are discharged. He is directed to surrender and complete the remaining sentence. However, the accused, Jagdanand Jha and Smt. Meera Jha, are extended benefit of doubt and acquitted of all charges. They are on bail and need not surrender. Their bail bonds are cancelled and sureties are discharged. The period of custody already undergone by the appellant will be set off against this modified sentence for 10 years rigorous imprisonment. 26. Criminal Appeal No. 472 of 2001 is partly allowed and Criminal Appeal No. 118 of 2001 is allowed.