# Anand Babu (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 1419
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-20
- **Case number:** Criminal Appeal No. 4229 of 2018
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-babu-in-jail-v-state-of-u-p-45216
- **Pages:** 17

## Headnote

Criminal Law - Indian Penal Code -
Sections 498A, 304B - D.P. Act, 1961 -
Section 4 - Appeal against conviction.

The expression 'Soon before her death" used in
section 304B I.P.C. and section 113B of the
Evidence Act is present with the idea of
proximity text. No definite period has been
indicated and the expression "soon before hear
death" is not defined. The determination of the
period which can come within the term "soon
before" is left to be determined by the courts,
depending upon facts and circumstances of
each case. (para 25)

Though, the Court has visualized that direct
ocular testimony is rarely available in dowry
death case and in most of such offence direct
evidence is hardly available and such cases are
usually proved by circumstantial evidence. This
section as well as section 113B of the Evidence
Act enact a rule of presumption i.e. if death
occurs within seven years of marriage in
suspicious circumstances. (para 27)

Now convict appellant being husband was
expected to explain the situations, which were
under his personal knowledge, as was required
u/s 106 of Evidence Act. But explanation given
by this convict appellant is that deceased had
committed suicide by jumping before train
owing to depression. (para 42)

Hence on this score too convict appellant failed
to
prove
whether
and
under
which
circumstance the trial court failed to appreciate
facts and evidence placed on record. (para 44)

Appeal is dismissed. (E-2)

List of cases cited: -

## Text

_Characters 0–39,978 of 56,454. This is a partial read: ask again with offset=39978 for what follows._

1420 INDIAN LAW REPORTS ALLAHABAD SERIES
certified about the mental condition of the
deceased
before
recording
her
dyingdeclaration and also after same was completed
at 2.30 p.m. on the same day and simply
because no orders of the S.D.M, Azamgarh
has been produced by the prosecution before
the trial court of the S.D.M concerned for
recording the dying-declaration by P.W.7
Ramashankar Pathak and Dr. Vivek Prakash
who certified the mental fitness of the deceased
have not been produced the said dyingdeclaration cannot be disbelieved as P.W.7 has
proved the dying-declaration (Ext.Ka-2) before
the trial court and further he has categorically
stated that the two certificates by which Dr.
Vivek Prakash has certified about the mental
state of the deceased. Moreover, the accused
has admitted the prosecution documents which
includes the dying-declaration also. Therefore,
in view of Section 294(3) Cr.P.C, the two
certificates
regarding
mental
fitness
of
deceased issued by Dr. Vivek Prakash at the
time of recording the dying-declaration of
deceased by P.W.7 requires no formal proof.
Hence the dying-declaration Ext.Ka-2 proved
by P.W.7 cannot be discarded. Thus having
considered the submissions of learned counsel
for the appellant particularly in the light of the
dying-declaration of the deceased, we are of
the opinion that conviction of the appellant
under Section 302 IPC cannot be sustained in
the eyes of law. Therefore, the conviction of
the appellant under Section 302 IPC by the
trial court is set-aside and he is convicted under
Section 304 Part II IPC. Now comes the
question which is to be determined by this
Court regarding the quantum of sentence
which may be imposed on the appellant for
offence u/s 304 Part II IPC.

20. The learned counsel for the
appellant has argued that as the appellant
has already served out seven years and two
months, hence he may be released.
Considering the said argument of learned
counsel for the appellant we are of the
considered
opinion
that
taking
into
account his conduct in not saving his wife
after the incident nor, had taken her to
hospital soon after the incident and in fact
the Jeth and Chachiya Sasur rescued the
deceased and rushed her to hospital
coupled with the fact that the deceased
remained alive for about a week after the
incident and yet the appellant did not even
visit to enquire about her welfare and
condition and are also of the opinion that
ends of justice would be served if
appellant is convicted and sentenced to ten
years rigorous imprisonment under Section
304 Part II IPC.

21. In view of the foregoing
discussions and preposition of law as has
been laid down by the Apex Court and
relied upon by the counsel for the
appellant, we convict the appellant under
Section 304 Part II IPC and sentence him
to ten years R.I. accordingly. The
appellant is stated to be in jail. He shall
serve out the sentence as awarded by this
Court

22. The appeal stands partly allowed.
----------
(2020)1ILR 1419

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.11.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 4229 of 2018

Anand Babu ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sanjay Rajpoot
1 All. Anand Babu Vs. State of U.P.
1421
Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code -
Sections 498A, 304B - D.P. Act, 1961 -
Section 4 - Appeal against conviction.

The expression 'Soon before her death" used in
section 304B I.P.C. and section 113B of the
Evidence Act is present with the idea of
proximity text. No definite period has been
indicated and the expression "soon before hear
death" is not defined. The determination of the
period which can come within the term "soon
before" is left to be determined by the courts,
depending upon facts and circumstances of
each case. (para 25)

Though, the Court has visualized that direct
ocular testimony is rarely available in dowry
death case and in most of such offence direct
evidence is hardly available and such cases are
usually proved by circumstantial evidence. This
section as well as section 113B of the Evidence
Act enact a rule of presumption i.e. if death
occurs within seven years of marriage in
suspicious circumstances. (para 27)

Now convict appellant being husband was
expected to explain the situations, which were
under his personal knowledge, as was required
u/s 106 of Evidence Act. But explanation given
by this convict appellant is that deceased had
committed suicide by jumping before train
owing to depression. (para 42)

Hence on this score too convict appellant failed
to
prove
whether
and
under
which
circumstance the trial court failed to appreciate
facts and evidence placed on record. (para 44)

Appeal is dismissed. (E-2)

List of cases cited: -

1. Pathan Hussain Basha Vs. St. of A.P., AIR
2012 SC 3205

2. Kashmir Kaur Vs. St. of Punj., AIR 2013 SC
1039

3. Banshi Lal Vs. St. of Har., AIR 2011 SC 691
4. Mustafa Shahdal Shaikh Vs. St. of Mah., AIR
2013 SC 851

5. Kaliyaperumal Vs. St. of T. N., AIR 2003 SC
3828

6.Satvir Singh & ors. Vs.. St. of Punj. and
another, (2001) 8 SCC 633

7. Rajinder Singh Vs. St. of Punj., (2015) 6 SCC
477

8. Reema Agarwal Vs. Anupam, AIR 2004 SC
1418

9. Trimukh Maroti Kirkan Vs. St. of Mah.,
(2007) 10 SCC 445

10. Vice Sumer Singh Vs. Surajbhan Singh &
ors., (2014) 7 SCC 323

11. Sham Sunder Vs. Puran, (1990) 4 SCC 731

12. M.P. Vs. Saleem, (2005) 5 SCC 554

13. Ravji Vs. St. of Raj., (1996) 2 SCC 175

14. Ashok Kumar Vs. St. of Raj., 1991(1) SCC
166

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This appeal under section 374(2)
of
Code
of
Criminal
Procedure
(hereinafter referred to as Cr.P.C.) has
been filed by convict appellant Anand
Babu against judgment of conviction and
sentence made therein dated 4.6.2018
passed by Court of Sessions Judge,
Pilibhit, in S.T. No. 288 of 2014, State Vs.
Anand Babu and others, arising out of
Case Crime No. 724 of 2014, u/s 498A,
304B I.P.C and 4 D. P. Act, P.S.
Jahanabad, District Pilibhit.

2. In brief, memo of appeal contends
that the trial court failed to appreciate facts
and law placed before it. There was no
evidence
against
appellant.
Marriage
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
between deceased and appellant, was
solemnized on 8.6.2014, in a simple
manner with no dowry nor any demand at
the time of marriage or subsequent to
marriage. No evidence with regard to
demand of dowry or cruelty with regard to
it was there on record. Spouse were living
happily and no complaint, in any manner,
was there prior to present incident. Both
families were farmers, having no status to
claim or fulfill demand of dowry. Both of
witnesses were declared hostile and they
have not supported prosecution, even then
impugned judgment of conviction with
deterrent sentence was passed. Autopsy
examination report reveals cause of death
due to head injury and it was an accident.
But learned Sessions Judge, Pilibhit, failed
to appreciate the facts and law placed on
record. Hence this appeal for setting aside
impugned judgment of conviction and
sentence made therein with further prayer
for acquittal from charges levelled against
appellant.

3. Perusal of impugned judgment and
record of lower court reveals that F.I.R.
(Ext. Ka1), chik F.I.R. (Ext. Ka2) of Case
Crime No. 724 of 2014, u/s 498A, 304B
I.P.C and 4 D. P. Act, P.S. Jahanabad,
District
Pilibhit,
dated
29.6.2014
registered
at
17.35
hours,
for
an
occurrence of 27.6.2014, having no
specific mention of time upon F.I.R.
having computerised typing and signature
of complainant Sunil Kumar over it (Ext.
Ka1) against Anand Babu (husband),
Shakuntala Devi (mother-in-law), Guddu
Joshi
(brother-in-law),
Vijay
Joshi
(brother-in-law), Shanker (brother-in-law-
Bahnoi), Gita (wife of Shanker) and
Shrawan Kumar (father-in-law), with this
contention that informant Sunil Kumar
was a resident of Mohalla Dubey, P.S.
Bisalpur, District Pilibhit, and since last 15
years he was residing at Delhi and
working as labourer, for maintaining his
family, residing there at. His sister Savita
was married to Anand Babu, resident of
Mohalla Mishran Tola @ Joshi Tola, P.S.
Jahanabad, District Pilibhit, about three
months back at Delhi. This was second
marriages of both Anand Babu and Savita.
After some time of marriage Anand Babu
(husband), Shrawan Kumar (father-inlaw), Shakuntala (mother-in-law), Guddu
and Vijay (brothers of Anand Babu), their
brother-in-law (Bahnoi) Hari Shanker and
their Sister Gita demanded Rs. One lac for
doing business. They started demanding
dowry from Savita and as a result cruelty
was being committed with her. Informant,
along with his father Ram Prakash, brother
Sushil and nephew Akash went to
Jahanabad for making persuasion to
accused persons that he was not in a
capacity to make payment of dowry of Rs.
One lac. Please do bear. But it was of no
avail and persistent demand of dowry with
cruelty
was
there.
On
27.6.2014
information about murder of Savita was
received through telephone. Informant
along with his family members rushed at
spot and found dead body at mortuary.
Savita, informant's sister, was murdered
for dowry by her in-laws and an attempt to
make it a case of accident was made.
Whereas this was a dowry death. Hence
this report.

4. Inquest report (Ext. Ka5) was got
prepared by S.I. Phool Singh, upon
information received through telephone
from
Circle
Officer,
Jahanabad,
on
27.6.2014 at 10.00 A.M. regarding lying of
a dead body of deceased lady at Platform
no. 2 of Railway Station, who had met
with some accident at railway track.
Inquest proceeding started at 11.30 A.M.
Death was held to be owing to antemortem
1 All. Anand Babu Vs. State of U.P.
1423
injuries caused by dashing of rail, but it
was opined to get it examined under
autopsy examination for which requisite
papers, challan dead body (Ext. Ka6),
Photo dead body (Ext. Ka7), specimen seal
of sealing dead body (Ext. Ka8), letter to
R.I. (Ext. Ka9) and letter to C.M.O. (Ext.
Ka10) were got prepared and those papers,
along with sealed intact dead body, were
carried to Medical Officer (PW5) Dr. D.
N. Singh, who was on postmortem duty,
where autopsy examination was conducted
and autopsy examination report (Ext. Ka4)
under handwriting and signature of Dr. D.
N. Singh was got prepared at the time of
autopsy examination. External and internal
examinations of dead body, which was
under sealed intact position, and was duly
identified by police personnel, who
brought it, was got made, wherein three
antemortem injuries (1) lacerated wound 8
cm x 6 cm x bone deep on occipital region,
underlying bone fracture, (2) lacerated
wound 7 cm x 4 cm x scalp deep on
forehead,
and
(3)
defused
abraded
contusion present at multiple places all
over body along with few lacerated wound
over back. Haemotama was present in
occipital lobe right side with profusing of
blood in brain tissue. Bleeding from nose
and ear was present resulting death owing
to
coma
and
hemorrhage
due
to
antemortem injuries.

5.

Investigation
resulted
in
submission of charge sheet (Ext. Ka13)
against Anand
Babu,
Guddu, Vijay,
Shakuntala @ Maharani and Shrawan
Kumar. Magistrate took cognizance on
13.8.2014 over charge sheet.

6. As the offence punishable u/s
304B I.P.C. was exclusively triable by
Court of Sessions, hence after making
compliance of provisions of section 207
Cr.P.C., file was committed to the Court of
Sessions, under section 209 Cr.P.C., for
making its trial.

7. Learned Additional Sessions
Judge/ Special Judge (E.C. Act), Pilibhit,
vide order dated 30.9.2014 heard learned
learned Public Prosecutor as well as
learned counsel for defence, thereupon
charges for offences punishable under
above sections were framed against
accused persons. Charges levelled by Sri
Yogesh
Chandra
Tripathi,
Additional
Sessions Judge/ Special Judge (E.C. Act),
Pilibhit, in English translation by Court
itself, is being reproduced as below:

"I, Yogesh Chandra Tripathi,
Additional Sessions Judge/ Special Judge
(E.C. Act), Pilibhit, charge you accused (1)
Anand Babu, (2) Guddu, (3) Vijay, (4)
Smt. Shakuntala Devi @ Maharani, (5)
Shrawan Kumar, as follows-

First- That Anand Babu was
married with Savita, sister of informant
Sunil Kumar, D/o Ram Prakash, resident
of Mohalla Dubey, P.S. Bisalpur, District
Pilibhit, three months back to her death
and after marriage, you being husband and
in-laws demanded Rs. One Lac in dowry
and owing to failure in fulfillment of the
same, you did cruelty by way of physical
and
mental
torture
resulting
cruel
treatment
with
her.
Thereby
you
committed offence punishable u/s 498A
I.P.C. within the cognizance of this court.

Second- You demanded Rs. One
Lac in dowry from informant's sister after
her being at your house and in case of
default you did assault and cruelty with
her. You with a cruel behaviour assaulted
her and owing to demand of dowry and
failure of its fulfillment you made murder
of
her
on
27.6.2014,
thereby
you
committed
offence
of
dowry
death
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
punishable u/s 304B I.P.C. within the
cognizance of Court.

Third- You after marriage of
Savita, informant's sister, with Anand
Babu and her being at your house did
demand of Rs. One lac in additional
dowry,
thereby
committed
offence
punishable u/s 4 of D.P. Act within
cognizance of this court.

In alternate

That you with a joint intention
for fulfillment of common object did
assault over informant's sister Savita on
27.6.2014 at your house, thereby she was
murdered. Hence, you committed offence
punishable u/s 302 read with 149 I.P.C.
within the cognizance of this court.

I hereby direct you for trial for
above charge.

Dated: 30.09.2014

Sd/- Illegible

(Yogesh
Chandra Tripathi)

Addl.
Sessions Judge/ Special

Judge
(E.C. Act), Pilibhit."

8. Charges were read over and
explained to accused persons, who pleaded
not guilty and claimed for trial.

9. Prosecution examined PW1-
informant Sunil Kumar, PW2- HC Rita
Tomar, PW3- Sushil Kumar Joshi, PW4-
Ram Prakash, PW5- Dr. D. N. Singh,
PW6- S.I. Phool Singh, PW7- Dy. S.P.
Investigating Officer Indu Siddhartha and
PW8- Suresh Chandra.

10. With a view to have explanation
of
accused
persons,
if
any,
over
incriminating material brought on record
by prosecution, statements of accused
persons were got recorded u/s 313 Cr.P.C.
in which each of accused persons denied
the accusation and pleaded their innocence
by alleging testimonies to be false. It was
said in common that deceased committed
suicide by jumping before train over
railway track owing to her depression.
Because she was previously married with
Govind and was blessed with two kids,
who were with Govind and against her
wishes she was married with Anand Babu,
under pressure of her family members. She
remained under depression. There was no
demand of dowry or cruelty with regard to
it nor a question of such demand ever
arisen. Previous marriage with Govind was
not broken by a decree of divorce and this
fact
was
hidden,
while
performing
marriage with Anand Babu. No evidence
in defence was given by accused persons.

11. After hearing learned public
prosecutor as well as learned counsel for
defence, learned Sessions Judge, Pilibhit,
passed the impugned judgment, wherein
accused-appellant
Anand
Babu
was
convicted for offences punishable u/s
498A, 304B I.P.C. read with section 4 D.
P. Act. He was acquitted of charge levelled
as
alternative
charge
for
offence
punishable u/s 302 read with 149 I.P.C.

12. One accused Vijay was minor
and juvenile in conflict with law. Hence,
his file was got separated and transmitted
to Juvenile Justice Board, Pilibhit, for
making trial.

13. Rest of accused persons Guddu,
Smt. Shakuntala Devi @ Maharani and
Shrawan Kumar were acquitted of the
charges levelled against them. No State
Appeal against judgment of acquittal of
Guddu, Shakuntala Devi @ Maharani and
Shrawan Kumar is there.
1 All. Anand Babu Vs. State of U.P.
1425

14. This appeal is only by convict
appellant- husband Anand Babu against
judgment of conviction as well sentence. It
was awarded after hearing learned Public
Prosecutor as well as learned counsel for
defence on the quantum of sentence and
was in the tune of ten years R.I. for
offence punishable u/s 304B I.P.C., two
years R.I. and fine of Rs. 10,000/-, in case
of default of payment of fine six months
additional
imprisonment,
for
offence
punishable u/s 498A I.P.C. and one year's
R.I. and fine of Rs. 5000/- and in case of
default
four
months
additional
imprisonment for offence punishable u/s 4
D.P. Act with direction for concurrent
running of sentences and adjustment of
previous incarceration, if any, in this case
crime number towards sentence awarded,
as above.

15. Against the judgment of
conviction and sentence made therein
convict appellant Anand Babu (husband)
has filed this criminal appeal.

16. Heard Sri Sanjay Rajpoot,
learned counsel for accused-applicant and
Sri Munna Lal, learned AGA for the State.

17. Learned counsel for appellant
argued that this was second marriage
performed by informant and his family
members without any information or
disclosing about erstwhile marriage of
Savita with Govind or her two kids being
with Govind. This was against wishes of
Savita resulting her depression. The
marriage was performed at Delhi at Arya
Samaj temple that too without any dowry
and in a very ordinary manner. Both sides
i.e. bride and groom sides are poor farmers
and residents of Pilibhit having no means
of living except doing job of labourer and
'Pheriwala' for their two time meals. No
demand of dowry in the tune of Rs. One
lac was ever made nor there was any
cruelty with regard to it. Even then this
judgment of conviction and sentence was
passed. There was great inconsistency and
material
contradiction
amounting
exaggeration and embellishment in the
testimonies of prosecution witnesses. This
all had arisen bonafide doubt in the case of
prosecution, but the trial court failed to
appreciate facts and law placed before it. It
was neither dowry death nor a murder.
Rather the death was owing to an accident
due to suicide, committed by the deceased.
Instantly
information
was
given
to
informant and his family members, who
got this delayed report lodged against
accused persons. On the same set of
evidence, learned trial Judge passed
judgment of acquittal for co-accused
persons, but convict appellant has been
convicted and sentenced on the evaluation
of same evidence; merely because of his
being husband of deceased. Hence this
appeal with above prayer for setting aside
impugned judgment of conviction and
sentence made therein with a further
prayer for judgment of acquittal against
the charges levelled against him.

18. Learned AGA vehemently
oppose the arguments of learned counsel
for appellant. It was argued by learned
AGA that after having information of
unnatural death, within three months of
marriage, the informant and his family
members had rushed at the spot and found
her dead and her dead body was lying at
mortuary, where autopsy examination was
got conducted. After performing last
rituals, this F.I.R. was got lodged and it
was with all precise accusation of dowry
death against accused persons. Prosecution
by its four witnesses of fact, as well formal
witnesses, has proved its case beyond
1426 INDIAN LAW REPORTS ALLAHABAD SERIES
reasonable doubt. As convict appellant was
husband, demand of dowry to the tune of
Rs. One lac was made at Delhi followed
by
subsequent
demand
of
dowry.
Prosecution case was proved in their
testimonies by factual witnesses. Hence,
judgment of conviction and sentence was
awarded
against
husband-convict
appellant. For rest of accused persons, who
were not instrumental in demand of dowry
or cruelty with regard to it, the case could
not be proved beyond reasonable doubt.
Hence judgment of acquittal for them was
passed. It was correct appreciation and
marshaling of facts placed on record and
proper with due application of law in
making judgment of conviction. Before
sentencing, both sides were heard over
quantum of sentence and under correct
perception
of
law
with
supported
precedents, sentence of ten years R.I. with
other sentences were awarded. Hence,
judgment of conviction and sentence made
therein is with full support of fact and
evidence placed on record coupled with
correct perspective of law propounded by
various Courts. Hence this appeal, being
devoid of merit, deserves to be dismissed.

19. Section 304-B of I.P.C. was
inserted by Act No. 43 of 1986 w.e.f.
19.11.1986 that:-

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.

There is an explanation that 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.

20. The Apex Court in Pathan
Hussain Basha Vs. State of Andhra
Pradesh, AIR 2012 SC 3205 has
propounded that if a married woman dies
in
unnatural
circumstances
at
her
matrimonial home within seven years from
her marriage and these are allegations of
cruelty or harassment upon such married
woman for or in connection with demand
of dowry by the husband or relatives of the
husband, the case would squarely come
under "dowry death" and there shall be a
presumption against the husband and the
relatives.

21. The Apex Court in many cases
has propounded that where the evidence
revealed
that
accused-husband
killed
deceased-wife for not satisfying his dowry
demand but nothing on record to show
involvement of co-accused in-laws with
the offence committed by the accused, coaccused in-laws are not guilty of offence
under sections 304B I.P.C.

22. The Apex Court in Kashmir
Kaur Vs. State of Punjab, AIR 2013 SC
1039 has propounded that in a case of trial
for dowry death the essential ingredients to
attract the provisions of section 304B
I.P.C. for establishing offence are (a) that
soon before the death of the deceased she
was subjected to cruelty and harassment in
connection with the demand of dowry, (b)
1 All. Anand Babu Vs. State of U.P.
1427
the death of the deceased woman was
caused by any burn or bodily injury or
some other circumstance, which was not
normal, (c) such death occurs within seven
years from the date of her marriage, (d)
that the victim was subjected to cruelty or
harassment by her husband or any relative
of her husband, (e) such cruelty or
harassment should be for or in connection
with demand of dowry, and (f) it should be
established
that
such
cruelty
and
harassment was made soon before her
death.

23. The Apex Court in Banshi Lal
Vs. State of Haryana, AIR 2011 SC 691
has propounded that the court has to
analyse the facts and circumstances as
leading to death of the victim and decide if
there is any proximate connection between
the demand of dowry and act of cruelty or
harassment and the death. Meaning
thereby cruelty or harassment with regard
to demand of dowry soon before death is a
crucial ingredient to be proved by
prosecution
before
attracting
any
provisions of section 304B I.P.C.

24. Apex Court in Mustafa Shahdal
Shaikh Vs. State of Maharashtra, AIR
2013 SC 851 has propounded that "soon
before death" means interval between
cruelty and death should not be much.
There must be existence of a proximate
and live links between the effect or cruelty
based on dowry demand and the concerned
death. If the alleged incident of cruelty is
remote in time and has become stale
enough
not
to
disturb
the
mental
equilibrium of the woman concerned, it
would be of no consequence.

25. This has again be reiterated by
Apex Court in Kaliyaperumal Vs. State
of Tamil Nadu, AIR 2003 SC 3828 that
the expression 'Soon before her death"
used in the substantive section 304B I.P.C.
and section 113B of the Evidence Act is
present with the idea of proximity text. No
definite period has been indicated and the
expression "soon before hear death" is not
defined. The determination of the period
which can come within the term "soon
before" is left to be determined by the
courts,
depending
upon
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 concerned cruelty or harassment and
effect of cruelty based on dowry demand
and the concerned death. If 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.

26. Regarding presumption under
section 113B of the Evidence Act in this
very
ruling
the
Apex
Court
has
propounded that the presumption shall be
raised only on proof of the following
essentials:-

1. The question before the court
must
be
whether
the
accused
has
committed the dowry death of a woman.

2. The woman was subjected to
cruelty or harassment by her husband or
his relatives.

3. Such cruelty or harassment
was for, or in connection with, any
demand for dowry.

4. Such cruelty or harassment
was soon before her death.

27. Though, the Apex Court has
visualized that direct ocular testimony is
rarely available in dowry death case and in
most of such offence direct evidence is
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
hardly available and such cases are usually
proved by circumstantial evidence. This
section as well as section 113B of the
Evidence Act enact a rule of presumption
i.e. if death occurs within seven years of
marriage in suspicious circumstances. This
may be caused by burns or any other
bodily injury. Thus, it is obligatory on the
part of the prosecution to show that death
occurred within seven years of marriage. If
the prosecution would fail to establish that
death did not occur within seven years of
marriage, this section will not apply.

28. Before going any further, it would
be relevant to mention here that section 113-B
of Indian Evidence Act, 1872, provides that
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. The explanation to the section
provides that expression 'dowry death' shall
have the same meaning as in section 304B of
IPC. Section 304B of the IPC defines 'dowry
death' and provides punishment for said
offence. Section 304B IPC provides that
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 other 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.

29. Sub-section 2 of section 304-B
further provides that whoever commits
dowry death shall be punished for
imprisonment for a term which may not be
less than seven years but which may
extend to imprisonment for life. It is
relevant to mention here that section 498A
provides punishment for an offence of
cruelty by husband or a relative of
husband of a woman.

30. Their Lordships of Hon'ble
Supreme Court in the case of Satvir Singh
and others vs. Sate of Punjab and
another, (2001) 8 SCC 633 has observed
as under:

"20. Prosecution, in a case of
offence under Section 304B IPC cannot
escape from the burden of proof that the
harassment or cruelty was related to the
demand for dowry and also that such
cruelty or harassment was caused soon
before her death. The word dowry in
Section 304B has to be understood as it is
defined in Section 2 of the Dowry
Prohibition Act, 1961. That definition
reads thus:

"2. 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 marriage to
the other party to the marriage; or

(b) by the parents of either party
to a marriage or by any other person, to
either party to the marriage or to any other
person;

at or before or any time after the
marriage in connection with the marriage
of the said parties, but does not include
dower or mahr in the case of persons to
whom the Muslim Personal Law (Shariat)
applies.

31. Thus, there are three occasions
related to dowry. One is before the
marriage, second is at the time of marriage
1 All. Anand Babu Vs. State of U.P.
1429
and the third is "at any time" after the
marriage. The third occasion may appear
to be an unending period. But the crucial
words are "in connection with the
marriage of the said parties". This means
that giving or agreeing to give any
property or valuable security on any of the
above three stages should have been in
connection with the marriage of the
parties. There can be many other instances
for payment of money or giving property
as between the spouses. For example,
some customary payments in connection
with birth of a child or other ceremonies
are prevalent in different societies. Such
payments are not enveloped within the
ambit of "dowry". Hence the dowry
mentioned in Section 304B should be any
property or valuable security given or
agreed to be given in connection with the
marriage.

32. It is not enough that harassment
or cruelty was caused to the woman with a
demand for dowry at some time, if Section
304B is to be invoked. But it should have
happened soon before her death. The said
phrase, no doubt, is an elastic expression
and
can
refer
to
a
period
either
immediately before her death or within a
few days or even a few weeks before it.
But the proximity to her death is the pivot
indicated
by
that
expression.
The
legislative object in providing such a
radius of time by employing the words
soon before her death is to emphasise the
idea that her death should, in all
probabilities, have been the aftermath of
such cruelty or harassment. In other words,
there should be a perceptible nexus
between her death and the dowry related
harassment or cruelty inflicted on her. If
the interval elapsed between the infliction
of such harassment or cruelty and her
death is wide the court would be in a
position to gauge that in all probabilities
the death would not have been the
immediate cause of her death. It is hence
for the court to decide, on the facts and
circumstances of each case, whether the
said interval in that particular case was
sufficient to snuff its cord from the
concept "soon before her death".

33. Their Lordships of Hon'ble
Supreme Court in the case of Rajinder
Singh v. State of Punjab, (2015) 6 SCC
477 has observed as under:

"7. The primary ingredient to
attract the offence under Section 304B is
that the death of a woman must be a
"dowry death"."Dowry" is defined by
Section 2 of the Dowry Prohibition Act,
1961, which reads as follows:

"2. 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 parents of either party
to a marriage or by any other person, to
either party to the marriage or to any other
person, at or before or any time after the
marriage in connection with the marriage
of the said parties, but does not include
dower or mahr in the case of persons to
whom the Muslim Personal Law (Shariat)
applies

Explanation
I.-
[***]
Explanation II.-The expression "valuable
security" has the same meaning as in
Section 30 of the Indian Penal Code (45 of
1860)."

8. A perusal of this Section
shows that this definition can be broken
into six distinct parts:

(1) Dowry must first consist of
any property or valuable security - the
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
word "any" is a word of width and would,
therefore, include within it property and
valuable security of any kind whatsoever.

2) Such property or security can
be given or even agreed to be given. The
actual giving of such property or security
is, therefore, not necessary.

3) Such property or security can
be given or agreed to be given either
directly or indirectly.

4) Such giving or agreeing to
give can again be not only by one party to
a marriage to the other but also by the
parents of either party or by any other
person to either party to the marriage or to
any other person. It will be noticed that
this clause again widens the reach of the
Act insofar as those guilty of committing
the offence of giving or receiving dowry is
concerned.

5) Such giving or agreeing to
give can be at any time. It can be at,
before, or at any time after the marriage.
Thus, it can be many years after a
marriage is solemnised.

6) Such giving or receiving must
be in connection with the marriage of the
parties. Obviously, the expression "in
connection with" would in the context of
the social evil sought to be tackled by the
Dowry Prohibition Act mean "in relation
with" or "relating to".

9. The ingredients of the offence
under Section 304-B have been stated and
restated in many judgments. There are four
such ingredients and they are said to be:

(a) death of a woman must have
been caused by any burns or bodily injury
or her death must have occurred otherwise
than under normal circumstances;

(b)
such
death
must
have
occurred within seven years of her
marriage;

(c) soon before her death, she
must have been subjected to cruelty or
harassment by her husband or any relative
of her husband; and

(d) such cruelty or harassment
must be in connection with the demand for
dowry."

34. Hence, the present case is to be
scrutinized in view of above settled
principles of law and factual evidence
proved on record.

35. PW1-informant Sunil Kumar, in
his testimony, has categorically stated that
his sister Savita, who was previously
married with Govind, but was with
dissolution of her marriage, was married
with convict appellant Anand Babu three
months prior to her unnatural death. This
date of marriage and Marriage certificate
(Ext. Kha11), which was of Arya Samaj
Temple,
Tishajari,
Delhi,
having
photographs of Anand Babu and Savita
affixed over it, was proved by this witness
and this fact has not been disputed in his
cross-examination. Rather fact of marriage
with convict appellant on 8.4.2014 was
undisputed before trial court as well as
before this appellate court by learned
counsel for appellant. The main thrust was
made by learned counsel for appellant that
the second marriage with convict appellant
was without a valid divorce decree
regarding erstwhile marriage of deceased
with Govind. This aspect is of no avail
because
admittedly,
marriage
was
performed and certificate (Ext. Kha11) of
same is on record. It was said from very
beginning that previous marriage with
Govind was dissolved by mutual consent.
Dissolution of marriage by a decree of
divorce is a legal mandate for dissolution
of marriage. But even under Hindu
Marriage Act ritual of dissolution of
marriage by way of mutual consent in
lower
trodden
community
or
any
1 All. Anand Babu Vs. State of U.P.
1431
community having this custom prevailed
therein has been held to be a way of
dissolution of marriage. Moreso, the
validity of same may be a question before
Family Court or a Civil Court, regarding
declaration of status of marriage in
between parties. But regarding criminal
trial for an offence of dowry death, it has
been propounded by Apex Court at many
times, particularly in Reema Agarwal Vs.
Anupam, AIR 2004 SC 1418 that inspite
of marriage being illegal or unrecognized,
the same shall be held to be a marriage in a
criminal trial regarding cruelty with regard
to demand of dowry and for domestic
violence. In the present case, marriage is
admitted
fact.
Hence
illegality
or
irregularity is of no consequence for this
trial. This marriage was performed on
8.4.2014 and this unnatural death of bridedeceased occurred on 27.6.2014. It is also
an undisputed fact. This has been proved
by testimony of PW1, regarding which,
there is no contradiction, exaggeration or
embellishment.
This
witness
has
categorically
said
that
after
having
information of death of his sister Savita, he
along with his family members rushed at
the place of her in-laws and found dead
body of his sister at mortuary. After getting
the same, after autopsy examination, last
rituals were performed then after report of
this case by way of presenting a
computerised application having signature
of this witness i.e. Exhibit Ka1 was
presented at P.S. Jahanabad, where this
case crime number was got registered
against accused persons. No contradiction
or exaggeration regarding registration of
this case crime number is there in his
testimony. It has further been corroborated
by testimony of PW2- Head Constable
Reeta Tomar, who in her testimony, has
averred that while being posted as
constable clerk at P.S. Jahanabad on
29.6.2014, she, on the basis of Ext. Ka1,
brought by Sunil, who was accompanied
by Parveen and Manoj Pandey and had
come at P.S. Jahanabad at 17.35 hours, got
case crime number registered vide chik no.
186 of 2014 by way of making entry in
General Diary, which was prepared under
one and common process by pasting
carbon beneath it under handwriting and
signature of this witness and the same is
on record as Exhibit ka2- chik F.I.R. and
Exhibit Ka3- General Diary entry. A
suggestive question was put to this witness
that this report was got lodged under
dictation of police personnel and this has
been vehemently answered in negative. It
has further been reiterated that Sunil
Kumar gave this FIR (Ext. Ka1) to this
witness and on the basis of which, this
case crime number was registered at above
given
time,
date
and
place
under
handwriting and signature of this witness.
Regarding this testimony, in answer to
question put u/s 313 Cr.P.C., there is no
denial regarding registration of case crime
number by this witness. Rather a false
implication has been answered. But this
witness has categorically proved formal
registration of this case crime number and
there is corroboration by PW1 and PW2.

36. PW3- Sushil Kumar Joshi is
further a witness of fact and brother of
deceased, who has said that deceased was
married with Anand Babu as per Hindu
rituals on 8.4.2014. All accused persons
are husband and his blood relatives. They
demanded Rs. One lac from the deceased
and within ten to 11 days of marriage Rs.
10,000/- was demanded from this witness.
He paid Rs. 5000/- but again within 10 to
11 days Rs. 20,000/- was demanded. It
was said to be beyond his capacity then
after a telephonic demand from his father
was made by accused persons in the tune
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
of Rs. One lac. Father of this witness along
with
Akash
went
to
accused
for
persuading, but they were not amenable
and persistent demand of Rs. One lac in
dowry was there for which deceased made
complaint to her parents.