ORDER : Manoj Kumar Garg, J. 1. Instant criminal appeal has been filed by the appellant against the judgment dated 27.08.2015 passed by learned District and Session Judge, Jaisalmer, in Sessions Case No.97/2012 by which the learned Trial Court convicted and sentenced the appellants as under: S.No. Offence U/s Sentence Fine Sentence in default of fine 1. 304-B IPC Life imprisonment — — 2. 498-A IPC 3 years RI Rs.5,000/- 3 months RI 2. Both the sentences were ordered to run concurrently. 3. Brief facts necessary to be noted for deciding the controversy are that on 29.08.2012, complainant Murlidhar Bohra submitted a written report (Ex-P/1) to the concerned Police Station to the effect that marriage of his sister Gayatri @ Benu was solemnized with the accused-appellant on 21.11.2007. Just after marriage, the in-laws of his sister started harassing her for dowry. It was further alleged that after one month of marriage, accused- appellant and his family members beat the complainant’s sister. Later on, compromise was arrived at between the parties and the complainant's sister again started living with the accused- appellant at Jaisalmer. Even after that, again the appellant subjected the complainant’s sister physically and mentally and continuously raised demand for dowry. Upon which, an amount of Rs.25,000/- was given by the complainant to the accused- appellant. It was further submitted that the complainant’s sister started working in a company. One day, when the complainant’s sister returned home after office, she found the accused-appellant in objectionable situation with a woman. That act of the accused- appellant was informed to the complainant by his sister. Upon which, the complainant visited Jaisalmer, where a social meeting was held in this regard in which, the accused-appellant accepted his mistake and gave assurance for not repeating such type of act. Subsequently, on 24.08.2012 at about 6:30 PM, the deceased talked to her mother on phone, but after 7:00 PM, the mobile phone of the deceased was continuously switched off. Then, at about 10:00 PM in the night, the neighbour informed the complainant on mobile about the ill health of his sister. On such information, they proceeded for Jaisalmer and on the way, they received information about the death of complainant’s sister in suspicious condition and her dead-body was being taken to Phalodi. Then, at about 10:00 PM in the night, the neighbour informed the complainant on mobile about the ill health of his sister. On such information, they proceeded for Jaisalmer and on the way, they received information about the death of complainant’s sister in suspicious condition and her dead-body was being taken to Phalodi. Upon reaching at Phalodi, the complainant talked with the accused-appellant about death of his sister, upon which the relatives and other persons of the society, make them understand to keep silent and then, cremation of dead-body of the complainant's sister was performed. Subsequently, after few days of cremation, the complainant on being high suspicion about the murder of his sister by the accused-appellant, submitted this written report to the Police. 4. On the said report, Police registered the FIR No.331/2012 (Ex-P/2) against the accused appellant and started investigation. During the course of investigation, Police arrested the accused- appellant and on completion of investigation, police filed challan against him. 5. Thereafter, learned Trial Court framed, read over and explained the charges for the offence under Sections 304-B, 498- A, 201 IPC to the accused appellant. He denied the charges and sought trial. 6. During the course of trial, the prosecution examined as many as twenty witnesses and also got exhibited relevant documents in support of its case. 7. The accused-appellant was examined under Section 313 Cr.P.C. and in defence, two witnesses was examined as DW-1 & DW-2. 8. Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statements of witnesses, vide judgment dated 27.08.2015 convicted and sentenced the accused- appellant for the offences under Section 304-B and 498-A of IPC and acquitted for the offence under Section 201 of IPC. Hence, this criminal appeal against conviction. 9. Counsel for the appellant vehemently submits that the incident occurred in this case on 24.08.2012, whereas FIR was registered on 29.08.2012, i.e. after five days of incident. This shows that after creating a concocted story, false FIR was registered by the complainant against the appellant. Furthermore, it is argued that the postmortem examination of the deceased, Gayatri, was not conducted, therefore, the cause of death could not be ascertained. If the complainant had suspicion, he had ample opportunity to request a postmortem examination prior to the cremation but he did not chose to do so. Furthermore, it is argued that the postmortem examination of the deceased, Gayatri, was not conducted, therefore, the cause of death could not be ascertained. If the complainant had suspicion, he had ample opportunity to request a postmortem examination prior to the cremation but he did not chose to do so. Consequently, it cannot be conclusively established that the appellant was responsible for the murder of Gayatri. Additionally, it is contended that there is no evidence to suggest that the deceased was subjected to any cruelty or ill-treatment related to dowry immediately prior to her death as the prosecution witnesses are mostly family members and seven of them have turned hostile. Therefore, the offence under Section 304-B of the INDIAN PENAL CODE is not substantiated against the accused-appellant. Therefore, the impugned judgment of conviction being per se illegal and perverse deserves to be quashed and set aside. In the alternative, counsel submits that if this court comes to the conclusion that the conviction under Section 304(b) IPC is liable to be sustained, then the maximum sentence awarded for the offence may be reduced considering the fact that the accused- appellant is in custody since 13.10.2012 i.e. more than twelve years and six months. To buttress his contentions, counsel has cited the judgments of the Hon’ble Supreme Court in the cases of Sher Singh @ Partapa Vs. State of Haryana [2015 AIR SCW 716] & Hira Lal & Ors. Vs. State (Govt. of NCT), Delhi [2003 CRI. L.J. 3711] and judgments of this High Court in the cases of Jai Ram Vs. State of Rajathan [1995 CRL. L.J. 1020] & Bhakhar Ram & Anr. Vs. State of Rajasthan [1995 CRL. L.J. 1345] 10. Per-contra, the learned Public Prosecutor and learned counsel for the complainant have vehemently submitted that the occurrence took place in this case within a period of seven years of the marriage at the house of the accused-appellant. Thus, the presumption is against the present appellant that he murdered his wife. Further, material prosecution witnesses specifically deposed that the deceased was subjected to demand of dowry. It is submitted that the learned trial court after meticulous examination of the evidence, oral as well as documentary, has rightly convicted and sentenced the accused-appellant for the offence under Sections 304-B IPC and Section 498-A IPC. They thus crave dismissal of the appeal. 11. Further, material prosecution witnesses specifically deposed that the deceased was subjected to demand of dowry. It is submitted that the learned trial court after meticulous examination of the evidence, oral as well as documentary, has rightly convicted and sentenced the accused-appellant for the offence under Sections 304-B IPC and Section 498-A IPC. They thus crave dismissal of the appeal. 11. We have considered the submissions of the counsel for the parties made at bar and perused the impugned judgment as well as record of the case. 12. The marriage of the appellant with the deceased was solemnized on 21.11.2007. She died on 24.08.2012. The FIR was registered on the basis of complaint of the brother of deceased on 29.08.2012 i.e. after five days of the incident against Mahesh Chandra, the appellant herein. The conviction of the appellant is under Sections 304B and 498A IPC raising presumption regarding dowry death within seven years of marriage. To appreciate the arguments raised by the learned counsel for the parties, a perusal of Section 304B and 498A IPC and Section 113B of the Indian EVIDENCE ACT would be required. The same are extracted herein-below: “304B. Dowry death:. Dowry death: (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 (28 of 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. 498-A. Husband or relative of husband of a woman subjecting her to cruelty498-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 purposes of this section “cruelty” means: (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 113B. Presumption as to dowry death113B. 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 had 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 304-B of INDIAN PENAL CODE (45 of 1860).” 13. The interpretation of Sections 304B and 498A IPC came up for consideration in the case of Baijnath v. State of M.P. reported in (2017) 1 SCC 101 , which are extracted below: “25. Whereas in the offence of dowry death defined by Section 304-B of the Code, the ingredients thereof are: (i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances. (ii) is within seven years of her marriage. (iii) that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry. The offence under Section 498-A of the Code is attracted qua the husband or his relative if she is subjected to cruelty. The Explanation to this Section exposits “cruelty” as: (i) 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). The Explanation to this Section exposits “cruelty” as: (i) 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). (ii) 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. 26. Patently thus, cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection therewith is the common constituent of both the offences. 27. The expression “dowry” is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The expression “cruelty” as explained, contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto. Be that as it may, cruelty or harassment by the husband or any relative of his for or in connection with any demand of dowry, to reiterate, is the gravamen of the two offences.” 14. As the aforesaid case was also pertaining to dowry death, presumption under Section 113-B of the Indian EVIDENCE ACT was also discussed in detail in the aforesaid judgment. The same are extracted below: “29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith. 30. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith. 30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or his relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof. 31. The legislative premature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss over and condone its failure to prove credibly, the basic facts enumerated in the sections involved, lest justice is the casualty.” 15. A conjoint reading of Section 304B IPC and Section 113B of the Indian EVIDENCE ACT with reference to the presumption raised was discussed in Para 32 of the aforesaid judgment, which is extracted below: “32. This Court while often dwelling on the scope and purport of Section 304-B of the Code and Section 113- B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304-B as in Shindo vs. State of Punjab, (2011) 11 SCC 517 : (2011) 3 SCC (Cri) 394 and echoed in Rajeev Kumar vs. State of Haryana, (2013) 16 SCC 640 : (2014) 6 SCC (Cri) 346. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304-B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113-B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao vs. Yadla Srinivasa Rao, (2003) 1 SCC 217 : 2003 SCC (Cri) 271, to the effect that to attract the provision of Section 304-B of the Code, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry.” 16. Admittedly, the deceased was cremated on the same day in the presence of her parents and other villagers. As per complainant, the cremation was done hurriedly under pressure. However, as per statement of independent witness PW-2 Brijmohan Ranga, when the deceased’s body was taken to Phalodi for cremation, the deceased’s parents were shown the body and the cremation was done thereafter. Thus, the complainant party failed to inform the police or get the post mortem conducted. The importance of a post mortem lies in establishing the cause of death, which is crucial in cases involving suspicious of foul play or unnatural death. The lack of a post mortem creates a lacuna in the evidence, making it difficult to conclusively determine the cause of death. Further, the supporting witnesses are mostly family members of the deceased and out of independent witnesses, seven of them have been declared hostile. 17. In view of the discussion made hereinabove, we are of the opinion that although the prosecution has proved its case against the accused-appellant for offence under Sections 304-B & 498-A IPC beyond all reasonable doubt. However, in the absence of specific cause of death and contradictions in the statement of witnesses, this Court is of the opinion that the sentence of life imprisonment awarded for offence under Section 304-B IPC is on the higher side. However, in the absence of specific cause of death and contradictions in the statement of witnesses, this Court is of the opinion that the sentence of life imprisonment awarded for offence under Section 304-B IPC is on the higher side. The ends of justice would meet, if the accused appellant is sentenced to ten years rigorous imprisonment instead of life imprisonment for offence under Section 304-B of IPC. 18. Accordingly, the appeal is partly allowed. The conviction of the accused-appellant for offence under Section 304-B & 498-A IPC is hereby maintained, however, the sentence for offence under Section 304-B IPC is hereby reduced to ten years rigorous imprisonment. The sentence for the offence under Section 498-A IPC is hereby maintained. 19. The impugned judgment dated 27.08.2015 passed by learned District and Session Judge, Jaisalmer, in Sessions Case No.97/2012 stands modified accordingly. 20. The accused appellant is behind the bars since 13.10.2012. 21. Thus, he has also undergone the default sentence period. He may be released forthwith, if not required in any other case. 22. Record of the trial court be sent back forthwith.