# Rajendra & Ors v. State Of U.P. 1504 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 5 ILRA 1503
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-17
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-ors-v-state-of-u-p-1504-indian-law-reports-allahabad-series-43781
- **Pages:** 14

## Headnote

Indian Penal Code, 1860 - Sections 498-A, 304-B
Dowry Prohibition Act, 1961 - Section 4
Evidence Act, 1872 - Section 113-B
Dowry Death - Ingredients - 'Soon before death' - Presumption - Separate residence of in-laws -
Acquittal of mother-in-law - Modification of sentence.
Where the death of a married woman occurred due to burn injuries within seven years of marriage and
evidence established cruelty and harassment by the husband in connection with demand of dowry soon
before death, presumption under Section 113-B of the Evidence Act was rightly drawn against the husband.
Mere denial of marriage in statement under Section 313 Cr.P.C. without any supporting evidence was held
inconsequential. However, in absence of specific allegations and evidence of cruelty or dowry demand against
the mother-in-law, coupled with evidence of separate residence, her conviction was set aside. Sentence of the
husband under Section 304-B IPC modified to minimum statutory punishment of seven years' rigorous
imprisonment considering lapse of time.

FACTS:
The deceased was married to appellant Rajendra; the 'Gauna' ceremony had taken place about two years
prior to the incident. Allegations were made by the mother of the deceased that despite sufficient dowry, the
husband and his family demanded additional dowry consisting of a television, scooter, fan and cash of Rs.
20,000/-. The deceased was subjected to cruelty and physical assault by her husband in connection with such
demand. About 10-15 days prior to the incident, she was allegedly beaten by her husband in the presence of
her mother when she resisted returning to her matrimonial home.

On 10.09.1991, information was received that the deceased was unwell; upon reaching the matrimonial
home, she was found dead due to burn injuries. An FIR was lodged and after investigation, the appellants
were charged under Sections 498-A, 304-B IPC and Sections 3/4 of the Dowry Prohibition Act.

PROCEDURE:
The Trial Court convicted the appellants under Sections 498-A and 304-B IPC and Section 4 of the Dowry
Prohibition Act. During pendency of the appeal, appellant Chandrika (father-in-law) died and the appeal
abated as against him. The appeal survived with respect to appellant Rajendra (husband) and appellant Smt.
Jamuna Devi (mother-in-law).

ISSUES:
Whether the prosecution proved the essential ingredients of Section 304-B IPC against the appellants.
Whether presumption under Section 113-B of the Evidence Act was rightly drawn.
Whether conviction of the mother-in-law was sustainable in absence of specific evidence.
Whether sentence awarded to the husband required modification.

HELD:
As to appellant Rajendra (husband):
The prosecution established that the deceased died an unnatural death due to burn injuries within seven
years of marriage and was subjected to cruelty and harassment by her husband soon before death in
connection with dowry demand. The presumption under Section 113-B of the Evidence Ac

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5 All. Rajendra & Ors. Vs State Of U.P.

1503
37. For the aforesaid reasons, I am also in agreement with the findings of the learned Court
below. After appreciating the evidence on record, I am also of the view that the appellants Sushil is
guilty for the offence punishable under section 366 and 376 IPC while the appellant Ram Prakash
@ Raja is guilty for the offence punishable under section 368 and 376 IPC. The conviction of both
the appellants is accordingly upheld.

38. As far as the quantum of punishment is concerned, learned court below has already
taken a lenient view and has sentenced the appellants Sushil with an imprisonment of five years for
the offence punishable under section 366 IPC along with fine of Rs.1000/- and he has further been
sentenced to five years rigorous imprisonment along with fine of Rs.1000/- for the offence
punishable under section 376 IPC; while the appellant Ram Prakash @ Raja has been convicted
with an imprisonment of five years and fine of Rs.1000/- for the offence punishable under section
368 IPC and he has also been convicted for the offence punishable under section 376 IPC with the
same sentence.

39. The circumstances in which the offence was committed and looking to the conduct of
the appellants, the appellants do not require any leniency or sympathy. Thus, I do not find any
sufficient ground to interfere with the sentence.

40. For the facts and circumstances mentioned above, the appeal is liable to be dismissed.

41. Both the appeals are dismissed. The conviction and sentence of both the appellants is
upheld. The appellants are directed to surrender before the court below within fifteen days from
today to serve out the sentence, failing which the trial court shall be at liberty to take coercive steps
against them. The bail granted to the appellants stands cancelled.

Office is directed to send a certified copy of this judgement along-with the lower
court record to the court concerned at an early date for its compliance and necessary action.

Let a copy of this judgement be kept on record of Criminal Appeal No.425 of 1994.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.05.2016

BEFORE

THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Appeal No.- 607 Of 1995

Rajendra & Ors. ...Appellants
Versus
State Of U.P. ...Respondent
1504 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel For the Appellants:
H.K. Mishra, Alok Kapoor, B.K. Shukla, B.N. Shukla, Mohd. Saulat Waseem, O.P. Tiwari, R.N. Yadav

Counsel For the Respondent:
Government Advocate

HEADNOTES:
Indian Penal Code, 1860 - Sections 498-A, 304-B
Dowry Prohibition Act, 1961 - Section 4
Evidence Act, 1872 - Section 113-B
Dowry Death - Ingredients - 'Soon before death' - Presumption - Separate residence of in-laws -
Acquittal of mother-in-law - Modification of sentence.
Where the death of a married woman occurred due to burn injuries within seven years of marriage and
evidence established cruelty and harassment by the husband in connection with demand of dowry soon
before death, presumption under Section 113-B of the Evidence Act was rightly drawn against the husband.
Mere denial of marriage in statement under Section 313 Cr.P.C. without any supporting evidence was held
inconsequential. However, in absence of specific allegations and evidence of cruelty or dowry demand against
the mother-in-law, coupled with evidence of separate residence, her conviction was set aside. Sentence of the
husband under Section 304-B IPC modified to minimum statutory punishment of seven years' rigorous
imprisonment considering lapse of time.

FACTS:
The deceased was married to appellant Rajendra; the 'Gauna' ceremony had taken place about two years
prior to the incident. Allegations were made by the mother of the deceased that despite sufficient dowry, the
husband and his family demanded additional dowry consisting of a television, scooter, fan and cash of Rs.
20,000/-. The deceased was subjected to cruelty and physical assault by her husband in connection with such
demand. About 10-15 days prior to the incident, she was allegedly beaten by her husband in the presence of
her mother when she resisted returning to her matrimonial home.

On 10.09.1991, information was received that the deceased was unwell; upon reaching the matrimonial
home, she was found dead due to burn injuries. An FIR was lodged and after investigation, the appellants
were charged under Sections 498-A, 304-B IPC and Sections 3/4 of the Dowry Prohibition Act.

PROCEDURE:
The Trial Court convicted the appellants under Sections 498-A and 304-B IPC and Section 4 of the Dowry
Prohibition Act. During pendency of the appeal, appellant Chandrika (father-in-law) died and the appeal
abated as against him. The appeal survived with respect to appellant Rajendra (husband) and appellant Smt.
Jamuna Devi (mother-in-law).

ISSUES:
Whether the prosecution proved the essential ingredients of Section 304-B IPC against the appellants.
Whether presumption under Section 113-B of the Evidence Act was rightly drawn.
Whether conviction of the mother-in-law was sustainable in absence of specific evidence.
Whether sentence awarded to the husband required modification.

HELD:
As to appellant Rajendra (husband):
The prosecution established that the deceased died an unnatural death due to burn injuries within seven
years of marriage and was subjected to cruelty and harassment by her husband soon before death in
connection with dowry demand. The presumption under Section 113-B of the Evidence Act was attracted and
5 All. Rajendra & Ors. Vs State Of U.P.

1505
remained unrebutted. Conviction under Sections 304-B and 498-A IPC and Section 4 of the Dowry Prohibition
Act upheld.
As to appellant Smt. Jamuna Devi (mother-in-law):
In absence of specific allegations in the FIR or substantive evidence of cruelty or dowry demand, and in view
of evidence indicating separate residence, the essential ingredients of Sections 498-A and 304-B IPC were not
established. Conviction set aside and appellant acquitted.
Sentence:
Considering the long lapse of time since the incident (1991), sentence of the husband under Section 304-B
IPC modified from ten years' rigorous imprisonment to the statutory minimum of seven years. Sentences to
run concurrently with benefit of set-off.

RATIO DECIDENDI:
For attracting Section 304-B IPC, prosecution must prove: (a) unnatural death within seven years of marriage;
and (b) cruelty or harassment for dowry soon before death. Once established, statutory presumption under
Section 113-B Evidence Act operates against the husband or relative, shifting the burden of proof. Vague or
omnibus allegations against in-laws without specific evidence are insufficient for convictio

DISPOSITION:
Appeal partly allowed.
Conviction of appellant Rajendra affirmed with modification of sentence.
Appeal allowed and conviction of appellant Smt. Jamuna Devi set aside; she acquitted subject to compliance
with Section 437-A Cr.P.C.
burden of proof. Vague or omnibus allegations against in-laws without specific evidence are insufficient for
conviction

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. The challenge in this appeal is the judgment and order dated 23.11.1995, passed by the
then Special Judge, Unnao in Session Trial No.80 of 1992, under Sections 498-A, 304-B I.P.C. and
Section 3/4 of Dowry Prohibition Act, relating to Case Crime No.139 of 1991, Police StationSohramau, District-Unnao, by which the appellants have been convicted for the offence punishable
under Sections 498-A, & 304-B I.P.C. and Section 4 of Dowry Prohibition Act.

2. The brief facts of the case are that on 10.09.1991 the mother of the deceased submitted
an application before the Superintendent of Police, Unnao stating therein that her daughter was
married with the appellant-Rajendra and 'Gauna' ceremony was also solemnized two years ago in
which sufficient dowry was given but the appellant-Rajendra and his family members were not
satisfied with the dowry and they castigated the deceased. When son of the complainant went for
'Vidai' of her sister then TV, Scooter, Fan and a sum of Rs.20,000/- were also demanded in dowry.
The husband of her daughter, Rajendra, used to beat her daughter for dowry regarding which her
daughter had told her. Just fifteen days before the incident her daughter had come on
'Rakshabandhan' alongwith son-in-law Rajendra. When on third day her son-in-law asked her
daughter to go with him, her daughter said that she does not want to go to her matrimonial home
because she is being tortured by the son-in-law and his family members. At that time, the son-inlaw started beating to her daughter in her presence. The village Pradhan Sri Suresh Tiwari was
called and on assurance of being provided TV, Fan, Scooter and Rs.20,000/- her son-in-law agreed
1506 INDIAN LAW REPORTS ALLAHABAD SERIES
to perform 'Vidai' of her daughter. She further stated that at about 7:00 p.m. in the evening one
person came to her house and stated that her daughter is ill, upon which, she went to the
matrimonial house of her daughter where she found that her daughter was dead. Upon this
application, a case at Crime No.139 of 1991, under Sections 498-A, 304-B I.P.C. and Section 3/4 of
Dowry Prohibition Act was registered. After investigation, the charge-sheet was filed against the
present appellants. The appellants were charged for the offences which they had denied and
claimed trial.

3. The prosecution has examined Ram Kumar Dixit as PW-1, Shiv Pal as PW-2, Smt.
Medana (complainant) as PW-3, Suresh Chandra Tiwari as PW-4, Dr. R.C. Kushwaha as PW-5 and
Jaydev Singh Verma (Investigating Officer) as PW-6. After recording the statement of the
prosecution witnesses, the statements of the appellants were recorded under Section 313 Cr.P.C.
and the strange part of the statement under Section 313 Cr.P.C. is that the appellants even denied
the marriage and have shown their ignorance whether she was subjected to post-mortem or not.
They have stated that they have been falsely implicated due to enmity and the deceased has
committed suicide.

4. After the statement under Section 313 Cr.P.C., Ram Ashrey the village Pradhan has been
examined as DW-1.

5. After appreciating the evidence on record, the learned trial court came to the conclusion
that the appellants are guilty for the offence punishable under Sections 498-A & 304-B I.P.C. and
Section 4 of Dowry Prohibition Act and accordingly sentenced them.

6. During course of pendency of this appeal, the appellant no.2-Chandrika (father-in-law)
has died. Therefore, the appeal filed by Chandika stands abated.

7. Heard learned counsel for the appellants, learned Additional Government Advocate for
the State and perused the record.

8. Learned counsel for the appellant has submitted that the deceased was a beautiful lady
and she wanted to marry someone else and did not like the present appellant therefore she
committed suicide. It has also been submitted that appellant-Rajendra himself took the deceased to
the hospital and the witnesses of fact, except Smt. Medana PW-3, have not supported the
prosecution version. It has also come in the evidence that the First Information Report was lodged
after consultation with another son-in-law. There was no injury on the body of the deceased and the
appellants have been wrongly convicted.

9. In the last, learned counsel for the appellants relying upon the case K. Prema S. Rao and
another vs. Yadla Srinivasa Rao and others reported in (2003) 1 Supreme Court Cases 217 has
submitted that the appellant-Rajendra has remained in Jail for about four years, therefore, a lenient
view may be taken. But as far as the case of Smt. Jamuna Devi is concerned, there is no sufficient
evidence against her, therefore, she deserves to be acquitted.
5 All. Rajendra & Ors. Vs State Of U.P.

1507
10. The law relied upon by the learned counsel for the appellants relates to the sentence
with regard to occurrence of offence punishable under Section 306 I.P.C., which does not contain
any minimum sentence.

11. On the other hand, learned counsel for the prosecution has submitted that the main
ingredients of offence punishable under Sections 498-A and 304-B I.P.C. and Section 3/4 of Dowry
Prohibition Act are fully proved. The appellants have not explained that how she died due to burn
injuries. Therefore, the presumption under Section 113-B of Indian Evidence Act shall be drawn
against the appellants. In this regard, learned counsel for the prosecution has relied upon the case
Nallam Veera Stayanandam and others vs. Public Prosecutor, High Court of A.P. reported in
(2004) 10 Supreme Court Cases 769, in which the following has been held:-

"We have heard learned counsel and also perused the records. It is true from the
evidence led by the prosecution it has been able to establish that the appellants were demanding
dowry which was a harassment to the deceased. It is also true that the death of the deceased
occurred within 7 years of the marriage, therefore, a presumption under Section 113-B of the
Evidence Act is available to the prosecution, therefore, it is for the defence in this case to discharge
the onus and establish that the death of the deceased in all probability did not occur because of
suicide but was an accidental death."

12. I have considered the rival submissions of learned counsel for the appellants as well as
learned counsel for the prosecution and have gone through the evidence on record.

13. In the present case, it is not disputed that the deceased has died due to burn injuries.
Although in the statement under Section 313 Cr.P.C., the appellants have denied the marriage but
to none of the prosecution witnesses, any such suggestion has been given that the deceased was not
married to Rajendra, who is the son of the appellant-Smt. Jamuna Devi. From the evidence on
record, it is proved beyond any doubt that the deceased (Golana) was married to appellant-Rajendra
and the death has occurred under unnatural circumstances within seven years of marriage.

14. For punishing any person for the offence punishable under Section 304-B I.P.C., it
must be proved that the death has occurred otherwise than under normal circumstances within
seven years of marriage and soon before her death, she was subjected to cruelty and harassment in
connection with any demand for dowry. If the aforesaid ingredients are fulfilled, the husband or his
relatives who subjected her to such cruelty or her husband can be presumed to be guilty for the
offence punishable under Section 304-B I.P.C.

15. In the case of Satvir Singh and others Vs. State of Punjab and another reported in
(2001) 8 SCC 633 the Hon'ble Apex Court has held as under:-

"The essential components of Section 304-B are: (i) Death of a woman occurring
otherwise than under normal circumstance, within 7 years of marriage, (ii) Soon before her death
she should have been subjected to cruetly and harassment in connection with any demand for
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to
such cruelty or harassment, can be presumed to be guilty of offence Under Section 304-B. To be
within the province of the first ingredient the provision stipulates that "where the death of a woman
is caused by any burns or bodily injury or occurs otherwise than under normal circumstance". It
may appear that the former limb which is described by the words "death caused by burns or bodily
injury" is a redundancy because such death would also fall within the wider province of "death
caused otherwise than under normal circumstances". The former limb was inserted for highlighting
that by no means death caused by burns or bodily injury should be treated as falling outside the
ambit of the offence".

16. The Hon'ble Apex Court in the case of Hira Lal and others vs. State (Govt.NCT) Delhi
reported in (2003) 8 SCC 80 has held as under:-

"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B Indian
Penal Code shows that there must be material to show that soon before her death the victim was
subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or
accidental death so as to bring it within the purview of "death occurring otherwise than in normal
circumstances". The expression "soon before" is very relevant where Section 113-B of the
Evidence Act and Section 304-B Indian Penal Code are pressed into service. The prosecution is
obliged to show that soon before the occurrence there was cruelty or harassment and only in that
case presumption operates. Evidence in that regard has to be led by the prosecution".

17. The Hon'ble Apex Court, while proceeding further and interpreting the expression
"soon before", opined thus:-

"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 cruelty or harassment concerned and the death in question. There
must be existence of a proximate and live link between the effect of cruelty based on dowry demand
and the death concerned. If the alleged incident of cruelty is remote in time and has become stale
enough not to disturb the mental equilibrium of the woman concerned, it would be of no
consequence".

18. It is relevant to refer here the provision of Section 113-A and 113-B of the Evidence
Act, which read as under:-

"113-A. Presumption as to abetment of suicide by a married woman,- When the
question is whether the commission of suicide by a woman had been abetted by her husband or any
relative of her husband and it is shown that she had committed suicide within a period of seven
years from the date of her marriage and that her husband or such relative of her husband had
subjected her to cruelty, the Court may presume, having regard to all the other circumstances of
the case, that such suicide had been abetted by her husband or by such relative of her husband.
5 All. Rajendra & Ors. Vs State Of U.P.

1509

Section 113-B, which provides for presumption as to dowry death, was inserted with
a view to fight against the plague of dowry death. The said provision is as follows:-

113-B 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 has 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.

19. The Hon'ble Apex Court in a recent judgment rendered in Rajinder Singh vs. State of
Punjab reported in (2015) 6 SCC 477 has interpreted the word "dowry" as defined in Section 2 of
Dowry Prohibition Act, 1961 as follows:-

"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 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"."
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
20. In the present case, there is alleged demand of TV, Scooter, Fan and a sum of
Rs.20,000/-. In view of the aforesaid interpretation of the word "dowry", these articles certainly
come within the purview of dowry.

21. As far as ingredients of offence under Section 304-B I.P.C. are concerned, it is settled
law that there are four ingredients and Hon'ble Apex Court in Rajinder Singh vs. State of Punjab
(supra) has again reiterated the said settled principles of law, which is as follows:-

"The ingredients of the offence under Section 304B 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.

This has been the law stated in the following judgments:

Ashok Kumar vs. Stateof Haryana, (2010) 12 SCC 350 at pages 360-361; Bachni
Devi & Anr. v. State of Haryana, (2011) 4 SCC 427 at 431, Pathan Hussain Basha v. State of A.P.,
(2012) 8 SCC 594 at 599, Kulwant Singh & Ors. v. State of Punjab, (2013) 4 SCC 177 at 184-185,
Surinder Singh v. State of Haryana, (2014) 4 SCC 129 at 137, Raminder Singh v. State of Punjab,
(2014) 12 SCC 582 at 583, Suresh Singh v. State of Haryana, (2013) 16 SCC 353 at 361, Sher
Singh v. State of Haryana, 2015 1 SCALE 250 at 262."

22. The word "soon before" appearing in Section 113-B of Indian Evidence Act, 1872 also
in Section 304-B I.P.C. have also been the subject matter of challenge in every case of dowry
death. Hon'ble the Apex Court in Surinder Singh v. State of Haryana reported in (2014) 4 SCC
129, has again interpreted the said "soon before" as under:

"17. Thus, the words "soon before" appear in Section 113-B of the Evidence Act,
1872 and also in Section 304-B IPC. For the presumptions contemplated under these sections to
spring into action, it is necessary to show that the cruelty or harassment was caused soon before
the death. The interpretation of the words "soon before" is, therefore, important. The question is
how "soon before"? This would obviously depend on the facts and circumstances of each case. The
cruelty or harassment differs from case to case. It relates to the mindset of people which varies
from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of
different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman.
5 All. Rajendra & Ors. Vs State Of U.P.

1511
It can be giving threats of injury to her or her near and dear ones. It can be depriving her of
economic resources or essential amenities of life. It can be putting restraints on her movements. It
can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive.
Physical cruelty could be actual beating or causing pain and harm to the person of a woman.
Every such instance of cruelty and related harassment has a different impact on the mind of a
woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances
which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon
before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may
differ from case to case. This must be kept in mind while examining each case of dowry death.

18. In this connection we may refer to the judgment of this Court in Kans Raj v.
State of Punjab, [(2000) 5 SCC 207 : 2000 SCC (Cri) 935] where this Court considered the term
"soon before". The relevant observations are as under: (SCC pp. 222- 23, para 15) "15. ... 'Soon
before' is a relative term which is required to be considered under specific circumstances of each
case and no straitjacket formula can be laid down by fixing any time-limit. This expression is
pregnant with the idea of proximity test. The term 'soon before' is not synonymous with the term
'immediately before' and is opposite of the expression 'soon after' as used and understood in
Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should
not be too long between the time of making the statement and the death. It contemplates the
reasonable time which, as earlier noticed, has to be understood and determined under the peculiar
circumstances of each case. In relation to dowry deaths, the circumstances showing the existence
of cruelty or harassment to the deceased are not restricted to a particular instance but normally
refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or
harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before
death' if any other intervening circumstance showing the non-existence of such treatment is not
brought on record, before such alleged treatment and the date of death. It does not, however, mean
that such time can be stretched to any period. Proximate and live link between the effect of cruelty
based on dowry demand and the consequential death is required to be proved by the prosecution.
The demand of dowry, cruelty or harassment based upon such demand and the date of death should
not be too remote in time which, under the circumstances, be treated as having become stale
enough.

Thus, there must be a nexus between the demand of dowry, cruelty or harassment,
based upon such demand and the date of death. The test of proximity will have to be applied. But, it
is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic
and sensitive approach of the court within the confines of law."

23. Hon'ble the Apex Court in Sher Singh vs. State of Haryana reported in 2015 (1)
SCALE 250, has further held as under:

"We are aware that the word 'soon' finds place in Section 304-B; but we would
prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that
the demand for dowry should not be stale or an aberration of the past, but should be the continuing
1512 INDIAN LAW REPORTS ALLAHABAD SERIES
cause for the death under Section 304-B or the suicide under Section 306 of the IPC. Once the
presence of these concomitants are established or shown or proved by the prosecution, even by
preponderance of possibility, the initial presumption of innocence is replaced by an assumption of
guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him
to produce evidence dislodging his guilt, beyond reasonable doubt."

24. Hon'ble the Apex Court in Rajinder Singh vs. State of Punjab (supra) has
distinguished the law laid down in Dinesh vs. State of Haryana reported in 2014 (5) SCALE 641,
in the following terms:

"The expression "soon before" is a relative term as held by this Court, which is
required to be considered under the specific circumstances of each case and no straight jacket
formula can be laid down by fixing any time of allotment. It can be said that the term "soon
before" is synonyms with the term "immediately before". The determination of the period which
can come within term "soon before" is left to be determined by courts depending upon the facts
and circumstances of each case."

We hasten to add that this is not a correct reflection of the law. "Soon before" is not
synonymous with "immediately before".

25. In view of the above settled position of law, the evidence against both the appellants is
being reappreciated.

26. First of all I take the case of appellant no.3- Smt. Jamuna Devi, who is the mother-inlaw of the deceased. The First Information Report is the first available basis for any prosecution.
Undoubtedly, if there are any omission in the First Information Report, that makes no difference
because the First Information Report cannot be treated as encyclopedia of all the facts. But at the
same time if there are specific averments in the First Information Report, they have to be given
their importance and they cannot be overlooked. Perusal of the First Information Report, which has
been proved by Smt. Medana PW-3, it establishes that the main grievance was with son-in-law i.e.
the appellant-Rajendra and there are flying allegations against the mother-in-law and father-in-law.
In the First Information Report, it has been specifically mentioned that due to non-fulfillment of
demand of dowry, her son-in-law used to beat her daughter oftentimes. A specific instance has been
given in the First Information Report, when her daughter just fifteen days before the incident had
come to tie "Rakhi", and her son-in-law had also come with her and on third day of
"Rakshabandhan" when her son-in-law asked her daughter for 'Vidai' then her daughter refused to
go with him and complained about torture due to demand of dowry. At that time also her son-inlaw in the presence of the complainant had beaten her daughter by kicks and fists and after
pacifying the mother she was sent alongwith her son-in-law upon the assurance that when her son
Dhani Ram will come back from Bombay, they will arrange TV, Scooter, Fan and Rs.20,000/-. In
this First Information Report, there is no specific allegation of any demand of dowry or cruelty or
torture in connection with demand of dowry by the father-in-law or the mother-in-law. The
contents of the First Information Report are further supported by the statement of Shiv Pal PW-2,
5 All. Rajendra & Ors. Vs State Of U.P.

1513
who although has not supported the prosecution case fully but has stated that the appellantRajendra used to beat the deceased, but does not know the reasons.

27. As per the accused persons themselves, the deceased was a beautiful and educated girl
and in the evidence of prosecution witnesses, no other dispute has come in the light nor anything
adverse has come in the cross-examination of the witnesses, which may prove that the said beating
by the appellant-Rajendra was not with regard to demand of dowry but there were other reasons
also. The statement of Ram Ashrey DW-1 is also relevant to the extent that after marriage of
Rajendra, his mother and father were residing separately. The cummulative effect of these facts i.e.
no specific allegation against the mother-in-law in the First Information Report, no specific
statement of Shiv Pal PW-2 and the complainant Smt. Medana PW-3 in their statements regarding
demand of dowry or cruelty or torture in connection with demand of dowry, is that the present
appellant-Smt. Jamuna Devi had neither demanded any dowry nor had caused any cruelty or
tortured the deceased soon before her death or at any other point of time. She also gets the benefit
from the statement of Ram Ashrey DW-1, who has stated that after marriage of the son, the present
appellant-Smt. Jamuna Devi and Chandrika started living separately. In these circumstances, the
ingredients of offence punishable under Sections 498-A and 304-B I.P.C. as well as Section 4 of
Dowry Prohibition Act are not proved against the appellant-Smt. Jamuna Devi and the prosecution
has utterly failed to bring home the guilt of the present appellant-Smt. Jamuna Devi. The
conclusions drawn by learned trial court with regard to Smt. Jamuna Devi are not in accordance
with the evidence on record. Therefore in my opinion, the conviction of Smt. Jamuna Devi is liable
to be set aside.

28. As far as the case of appellant-Rajendra who is the husband of the deceased is
concerned, it is not disputed that the deceased has died due to burn injuries and the death has
occurred otherwise than under normal circumstances. It is also not disputed that the death has
occurred within seven years of marriage at the house of Rajendra. Although the appellant-Rajendra
has denied the marriage in his statement under Section 313 Cr.P.C., but neither any suggestion in
this regard has been given to the prosecution witnesses nor any other evidence has been adduced to
show that the appellant-Rajendra is married to someone else except the deceased. Furthermore,
Ram Ashrey DW-1, who is the witness of the appellant, has also stated that Rajendra was married
with the deceased.

29. The denial of marriage in the statement under Section 313 Cr.P.C. shows the nonseriousness of this appellant towards his own wife. This non-seriousness is further enhance by the
fact that the appellant in his statement under Section 313 Cr.P.C. has shown his ignorance about the
fact that whether the deceased was subjected to post-mortem. It is very unfortunate that the
appellant-Rajendra is so irresponsible towards his own wife.

30. As far as the evidence is concerned, it has come in the evidence that she was subjected
to cruelty and harassment by her husband Rajendra and soon before her death she was subjected to
cruelty and torture in connection with the demand of dowry. In the First Information Report itself,
it has been mentioned that when about fifteen days prior to the incident the daughter of the
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant had come to tie "Rakhi" to her brother, the appellant-Rajendra has also come with
her and on third day when he asked his wife to go with him, she refused and complained
regarding the cruelty and torture by her husband due to non-fulfillment of demand of dowry.
The complainant Smt. Medana has specifically mentioned in the First Information Report that
upon this, her son-in-law became annoyed and in her presence she was beaten by kicks and
fists and only on assurance that after returning of her son Dhani Ram from Bombay, she will
manage for TV, Scooter, Fan and Rs.20,000/-, then only she was brought to her matrimonial
home.

31. Smt. Medana PW-3 has reiterated this allegation in her statement on oath and she
has further stated that she was not in a mood for 'Vidai' but upon intervention of village
Pradhan of village of the appellant-Rajendra as well as herself, the 'Vidai' was done. The
complainant has been cross-examined at length but apart from the minor contradictions
regarding scribing of the First Information Report, she has supported her examination-in-chief
in the cross-examination also. Her statement is in consonance with the First Information Report
and appears to be very natural and genuine. I am of the opinion that there is no such material
contradiction due to which her statement may not inspire confidence. There is a close
proximity in the incident of physical cruelty just 10-11 days prior to the incident and that
cruelty was with regard to demand of dowry and the death has occurred just 10-11 days
thereafter. Under these circumstances, it cannot be said to be an accidental death. Therefore, it
has also been proved that soon before her death, she was being subjected to cruelty. From the
evidence on record, it is also proved that the said cruelty and harassment was in connection
with demand of dowry because in the First Information Report itself it has been mentioned that
upon assurance that after the return of her son Dhani Ram from Bombay, she will arrange for
TV, Scooter, Fan and Rs.20,000/-. Therefore, in my opinion, all the ingredients of Section 304B I.P.C. as well as Section 498-A I.P.C. and Section 4 of Dowry Prohibition Act stand proved.

32. Dr. R.C. Kushwaha PW-5 has proved the post-mortem of the deceased and has
stated that she died due to burn injuries. As far as the defence of the appellants that she was a
beautiful and educated lady and wanted to marry someone else is concerned, I do not find any
substance in this defence for the reason that if she wanted to marry someone else she could
have escaped from the house. Secondly, if she did not like her husband-Rajendra, then she
could have easily left her matrimonial home. But just for this reason that she did not like her
husband, it does not appears probable to commit suicide.

33. In my opinion, the prosecution has succeeded in proving the dowry death and in
view of the presumption under Section 113-B of Indian Evidence Act, it was incumbent upon
the appellants to have disproved this fact that it was not a dowry death but no such reliable
evidence has been adduced by the appellants in their defence and for this purpose the statement
of Ram Ashrey DW-1 does not inspire confidence.
5 All. Rajendra & Ors. Vs State Of U.P.

1515
34. Jay Dev Singh Verma PW-6 (Investigating Officer) has proved the investigation of
the case and formal papers of the prosecution and in the cross-examination, no such fact has
come into light that investigation was not done fairly or that it was under some pressure.
35. For the facts and circumstances mentioned above, after reappreciating the evidence
as above, I am of the view that the prosecution has succeeded in proving the guilt of the
appellant-Rajendra. Therefore, his conviction is liable to be upheld.

36. As discussed above, the prosecution has not succeeded in proving the guilt of Smt.
Jamuna Devi (appellant no.3). Therefore, the conviction and sentence of Smt. Jamuna Devi are
liable to be set aside.

37. As far as quantum of sentence is concerned, Section 304-B I.P.C. provides for
minimum sentence of seven years rigorous imprisonment. It is not such a case which can be
converted into a case of suicide under Section 306 I.P.C. The law relied upon by the learned
counsel for the appellants in K. Prema S. Rao and another vs. Yadla Srinivasa Rao and
others (supra) is not applicable to the present set of facts.

38. Learned trial court has awarded ten years rigorous imprisonment to the appellants
for the offence punishable under Section 304-B I.P.C.. The incident took place in the year
1991, for which, about twenty five years have passed. The appellant-Rajendra was twenty four
years of age at the time of statement recorded under Section 313 Cr.P.C., therefore, he must be
about fifty years of age at present.

39. Considering the facts and circumstances of the case, the sentence of appellantRajendra for the offence punishable under Section 304-B I.P.C. is modified to seven years
rigorous imprisonment. The sentence awarded for the offence punishable under Section 498-A
I.P.C. and Section 4 of Dowry Prohibition Act does not require any interference. All the
sentences shall run concurrently and the period already undergone shall be set off.

40. Accordingly, the appeal of appellant-Rajendra is dismissed alongwith above
modification of sentence under Section 304-B I.P.C. The appellant-Rajendra is directed to
surrender before the Chief Judicial Magistrate concerned within fifteen days from today to
serve out his remaining sentence, failing which, the learned trial court shall be at liberty to take
coercive steps against the appellant-Rajendra.

41. The appeal is allowed so far as it relates to appellant no.3-Smt. Jamuna Devi.