# Ram Ajor (In Jail) v. State of U.P

- **Citation:** (2020) 10 ILRA 70
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-29
- **Case number:** Criminal Appeal No. 5050 of 2006
- **Bench:** Ramesh Sinha, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-ajor-in-jail-v-state-of-u-p-45366
- **Pages:** 14

## Headnote

Criminal law - Indian Penal Code, 1860-
Section 304 -B- Death of wife under
unnatural circumstances within seven
years of her marriage -Not disputed that
deceased died of strangulation within
seven years of her marriage. However,
there is no evidence that deceased was
done to death by the accused-appellant
and in view of defence evidence, it
appears that she was found hanging on a
tree, while she has gone to collect grass.
Here it would be pertinent to mention that
even death by suicide also falls within the
ambit of ''death otherwise than under
normal circumstances '' as contemplated
under section 304-B (1) of IPC. It is clear
from post-mortem report of deceased that
she died of strangulation. Thus it clear
that death of deceased was ''otherwise
than under normal circumstances''.

Death of wife, even by suicide, within seven
years of her marriage will come within the ambit
of Section 304-B of the IPC as the same would
constitute an unnatural circumstance.

Evidence Law - Indian Evidence Act, 1872-
Section
113-B-
Presumption
under-
Section
113-B
of
the
Evidence
Act
mandates that the Court has to raise the
statutory presumption in a case where it is
shown that soon before her death such
woman has been subjected to cruelty or
harassment for or in connection with any
demand of dowry. Once the initial burden
of showing that the woman was subject to
cruelty or harassment for or in connection
with any demand of dowry soon before
her
death
is
discharged
by
the
prosecution, the Court has to presume
that such person has caused a dowry
death unless the accused disproves it.
However, it is open to the accused to
adduce such evidence for disproving the
said compulsory presumption, as the
burden is unmistakably on him to do so.

The presumption under section 113-B of the
Evidence Act is mandatory and casts the
burden of proof upon the accused where the
prosecution establishes that the deceased died
under unnatural circumstances, within seven
years of her marriage and was subjected to
cruelty and harassment in pursuance of demand
of dowry soon before her death. However, the
said presumption is rebuttable and the burden
can be discharged by the defence by leading
evidence for disproving the said presumption.

Criminal Law - Indian Penal Code, 1860-
Section 304 -B - Expression "soon before
her death"- It is manifest that there is a
proximate
connection
between
the
demand of dowry and act of cruelty /
harassment and the death of deceased.
The interval between cruelty and death of
10 All. Ram Ajor Vs. State of U.P.
71
deceased is not much and such gap has to
be examined in the attending facts and
circumstances of the matter. In view of
evidence there appears a proximate and
live link between the effect or cruelty
based on dowry demand and the death of
deceased. As observed by the Hon'ble
Apex Court, the determination of the
period which can come within the term
"soon before" is to be determined by
courts,
depending
upon
facts
and
circumstances
of
each
case
and
it
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.

The term "Soon before her death" implies that
there should be a proximate and live link
between the time of death of wife and the
cruelty in pursuance of demand of dowry but
the determination of the said interval will
depend upon the facts and circumstances of
each case and no straightjacket formula can be
applied.

Quantum of sentence- It is settled legal
position that appropriate sentence should
be awarded after giving due consideration
to the facts and circumstances of each
case, nature of offence and the manner in
which it was executed or committed. The
measure
of
punishment
should
be
proportionate to gravity of offence. Object
of sentencing should be to protect society
and to deter the criminal in achieving
avowed object of law. Having regard to
the totality of facts and

## Text

_Characters 0–39,979 of 47,907. This is a partial read: ask again with offset=39979 for what follows._

70 INDIAN LAW REPORTS ALLAHABAD SERIES
awarded to accused-appellant is also
appropriate. Thus, the appeal has no merit.

58. Appeal is dismissed.

59. Accused-appellant Boby @ Sushil
is stated in judicial custody, hence he shall
serve out remaining sentence.

60. A copy of this order as well as the
trial court record be sent back to the court
concerned.
----------
(2020)10ILR A70
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 5050 of 2006

Ram Ajor ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sheetla Prasad Pandey, Sri S.K. Tiwari,
Sri Ravindra Prakash Srivastava

Counsel for the Opposite Party:
Ms. Archana Singh, A.G.A.

Criminal law - Indian Penal Code, 1860-
Section 304 -B- Death of wife under
unnatural circumstances within seven
years of her marriage -Not disputed that
deceased died of strangulation within
seven years of her marriage. However,
there is no evidence that deceased was
done to death by the accused-appellant
and in view of defence evidence, it
appears that she was found hanging on a
tree, while she has gone to collect grass.
Here it would be pertinent to mention that
even death by suicide also falls within the
ambit of ''death otherwise than under
normal circumstances '' as contemplated
under section 304-B (1) of IPC. It is clear
from post-mortem report of deceased that
she died of strangulation. Thus it clear
that death of deceased was ''otherwise
than under normal circumstances''.

Death of wife, even by suicide, within seven
years of her marriage will come within the ambit
of Section 304-B of the IPC as the same would
constitute an unnatural circumstance.

Evidence Law - Indian Evidence Act, 1872-
Section
113-B-
Presumption
under-
Section
113-B
of
the
Evidence
Act
mandates that the Court has to raise the
statutory presumption in a case where it is
shown that soon before her death such
woman has been subjected to cruelty or
harassment for or in connection with any
demand of dowry. Once the initial burden
of showing that the woman was subject to
cruelty or harassment for or in connection
with any demand of dowry soon before
her
death
is
discharged
by
the
prosecution, the Court has to presume
that such person has caused a dowry
death unless the accused disproves it.
However, it is open to the accused to
adduce such evidence for disproving the
said compulsory presumption, as the
burden is unmistakably on him to do so.

The presumption under section 113-B of the
Evidence Act is mandatory and casts the
burden of proof upon the accused where the
prosecution establishes that the deceased died
under unnatural circumstances, within seven
years of her marriage and was subjected to
cruelty and harassment in pursuance of demand
of dowry soon before her death. However, the
said presumption is rebuttable and the burden
can be discharged by the defence by leading
evidence for disproving the said presumption.

Criminal Law - Indian Penal Code, 1860-
Section 304 -B - Expression "soon before
her death"- It is manifest that there is a
proximate
connection
between
the
demand of dowry and act of cruelty /
harassment and the death of deceased.
The interval between cruelty and death of
10 All. Ram Ajor Vs. State of U.P.
71
deceased is not much and such gap has to
be examined in the attending facts and
circumstances of the matter. In view of
evidence there appears a proximate and
live link between the effect or cruelty
based on dowry demand and the death of
deceased. As observed by the Hon'ble
Apex Court, the determination of the
period which can come within the term
"soon before" is to be determined by
courts,
depending
upon
facts
and
circumstances
of
each
case
and
it
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.

The term "Soon before her death" implies that
there should be a proximate and live link
between the time of death of wife and the
cruelty in pursuance of demand of dowry but
the determination of the said interval will
depend upon the facts and circumstances of
each case and no straightjacket formula can be
applied.

Quantum of sentence- It is settled legal
position that appropriate sentence should
be awarded after giving due consideration
to the facts and circumstances of each
case, nature of offence and the manner in
which it was executed or committed. The
measure
of
punishment
should
be
proportionate to gravity of offence. Object
of sentencing should be to protect society
and to deter the criminal in achieving
avowed object of law. Having regard to
the totality of facts and circumstances of
the instant case including the fact that
accused-appellant Ram Ajor in custody
since last 16 years, we are of the
considered opinion that the ends of justice
would meet, if we reduce the sentence of
the appellant from life imprisonment to
that of already undergone by the accusedappellant.

The quantum of sentence depends upon the
nature and gravity of the offence and a balance
has to be struck between the extenuating or
mitigating circumstances and the commission of
the offence. Accordingly sentence reduced to
the period undergone.

Appeal partly allowed. (Para 22, 24, 25, 26,
27, 28,30, 33) (E-3)

Case Law relied upon:-

1. Hem Chand Vs. St. of Har.(1994) 6 SCC 727

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

3. Rajender Singh Vs. St. of Punj. Crl. Appeal
No. 2321 of 2009

4. Smt. Shanti & anr. Vs. St. of Har. (1991) 1
SCC 371

5. Kans Raj Vs. St. of Punj. & ors.(2000) 5 SCC
207

6. Banshi Lal Vs. St. of Har., AIR 2011 SC
691

7. Mustafa Shahdal Shaikh Vs. St. of Maha., AIR
2013 SC 851

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

9. Prem Kumar Vs. St. of Raj. (2009) 3 SCC 726

10. Yashoda Vs. St. of M.P. (2004) 3 SCC 98

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

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

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

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

15. V.K. Mishra & anr. Vs. St. of U.K & Anr.,
2015 Law Suit (SC) 665

16. Hem Chand Vs. St. of Har., [(1994) 6 SCC
727

17. G.V. Siddaramesh Vs. St. of Kar., (2010) 3
SCC 152
72 INDIAN LAW REPORTS ALLAHABAD SERIES
18. Crl. Appeal No. 724 of 2019 Kashmira Devi
Vs. St. of U.K & Ors, decided on 28.01.2020

(Delivered by Hon'ble Raj Beer Singh J.)

1. This Criminal Appeal has been
preferred
against
judgment
and
order
07.08.2006 / 08.08.2006 passed by learned
Additional Sessions Judge / FTC, court No.
3, Basti in Session Trial No. 267 of of 2004
(State Vs. Ram Ajor and another), Police
Station Dudhara, District Basti, whereby
accused-appellant Ram Ajor has been
convicted under sections 498A, 304-B of
Indian Penal Code (hereinafter referred as
IPC) and Section 4 of Dowry Prohibition Act
(hereinafter refered as DP Act) and he was
sentenced
to
three
years
rigorous
imprisonment along with fine of Rs. 2000/-
under Section 498-A IPC, life imprisonment
under section 304-B IPC and one year
rigorous imprisonment along with fine of Rs.
2000/- under Section 4 DP Act. All the
sentences were directed to run concurrently.

2. Accused appellant Ram Ajor is
husband of deceased Vimla Devi. As per first
information report, prosecution version is that
marriage of the accused-appellant Ram Ajor
was solemnized with deceased Vimla Devi
(daughter of informant Daya Ram) about six
years prior to the incident and that informant
Daya Ram has given dowry like clothes,
utensils and and watch etc. in the marriage.
After marriage, accused-appellant Ram Ajor
and his family members used to harass the
deceased on account of dowry. They used to
demand a golden chain and colour TV as
additional
dowry.
Meanwhile,
accusedappellant has also developed illicit relations
with one widow lady namely Kismati Devi.
Accused-appellant Ram Ajor used to beat the
deceased at instance of said Kismati Devi.
When deceased told these facts to her
maternal family, her father has given a
buffalo and some cash to the appellant but he
was still not satisfied and continued to harass
the deceased. On 21.06.2004 at around 10:00
AM while the deceased has gone for
collecting grass (fodder), she was done to
death by accused-appellant and alleged
Kismati Devi.

3. Perusal of record shows after alleged
incident on 21.06.2004, accused-appellant
has given an information to the police vide
application exhibit Kha-1 on 21.06.2004
stating that when his wife has gone to collect
grass in jungle, she has got herself hanged by
neck's noose of her ''saari' on a katahal tree.
Thereafter, police have reached at the spot.
Inquest proceedings were conducted by S.I.
Motilal vide inquest report exhibit Ka-8 and
dead body of the deceased was sealed and it
was sent for post-mortem.

4. Post-mortem on the body of the
deceased was conducted by PW-4 Dr. Mohd.
Iqbal on 22.06.2004 vide post-mortem report
exhibit Ka-2. Deceased Vimla has sustained
following injuries:-

(i) Contusion 8 cm x 8 cm over front
of left shoulder.

(ii) Contusion 5.6 cm x 5.2 over mid
part of left neck.

(iii) Contusion 6.2 cm x 4.8 cm over
mid part of right neck.

(iv) Contusion 7.2 cm x 7 cm over
left cheek.

The membranes and brain of
deceased were congested. Similarly, laryn,
trakiya and bronchi, Liver, spleen and kidney
were also found congested.

Cause of death was due to asphyxia
as a result of strangulation.

5. On 23.06.2004 informant Daya Ram
has submitted a tehrir exhibit Ka-1 at the police
station alleging facts as mentioned earlier and
10 All. Ram Ajor Vs. State of U.P.
73
on that basis case was registered on 23.06.2004
by 16:30 hours under Section 498A, 304B IPC
and 3⁄4 DP Act against accused-appellant Ram
Ajor and co-accused Kismati Devi vide FIR
exhibit Ka-6.

6. Investigation was conducted by PW-5
Ashok Kumar, Circle Officer, Mehdawal, Basti.
During course of the investigation site plan
exhibit Ka-3 was prepared and statements of
witnesses were recorded. After completion of
investigation, charge sheet was filed against
accused appellant Ram Ajor and co-accused
Kismati Devi.

7. Trial court framed charges under
Section 498-A, 304-B IPC and Section
3/4 of DP Act against the accusedappellant and co-accused Kismati Devi.
In order to bring home guilt of the
accused
persons,
prosecution
has
examined six witnesses.

8. Accused persons were examined
under
section
313
Cr.P.C.,
wherein
accused-appellant Ram Ajor took the plea
that his marriage was solemnized with
deceased about 7-8 years ago and after
death of his wife Vimla Devi, informant
Daya Ram was making illicit demand of
money from him and when he declined, a
false case was lodged against him.

9. In defence evidence, accusedappellant Ram Ajor himself has appeared
as DW-1. One constable Devi Sharan
Pandey was examined as DW-2.

10. After hearing and analysing
evidence on record, accused-appellant
was convicted under Section 498-A, 304B IPC and section of 4 of DP Act and
sentenced as stated in opening paragraph
of this judgment whereas co-accused
Kismati Devi was acquitted.

11.

Being
aggrieved
by
the
impugned judgment and order, accusedappellant has preferred this criminal
appeal.

12. Heard Sri Sheetala Prasad
Pandey, learned counsel for appellant and
Ms. Archana Singh, learned A.G.A. for
the State and perused the record.

13.
Learned
counsel
for
the
appellant has not disputed the findings of
facts and he has confined his arguments
only regarding quantum of sentence.

14. Though this appeal is being
pressed on behalf of appellant on the
quantum of sentence only, however, we
have gone through the entire evidence.

15. Informant/PW-2 Daya Ram has
deposed that the marriage of his daughter
Vimla was solemnized with accused
appellant Ram Ajor in month of June, 1998
and he has given dowry articles like bicycle
etc.. After some time, his daughter has told
him that accused-appellant was making
demand of golden chain and colour TV and
on that account he used to harass and beat
her. When his son Surya Bhan used to visit
matrimonial home of deceased, she used to
tell him that about torture meted out to her
on account of dowry demand. She has also
told that accused-appellant Ram Ajor has
developed illicit relations with one widow
lady Kismati Devi. PW-2 Daya Ram further
stated that his daughter Vimla has given
birth to three children and at the time of her
death, her youngest daughter was aged only
2-3 months. One week prior to the incident,
Surya Bhan has visited her matrimonial
home and Vimla Devi has told him about
harassment on account of dowry. On
21.06.2004 PW-2 Daya Ram was informed
by his sister that his daughter Vimla Devi
74 INDIAN LAW REPORTS ALLAHABAD SERIES
has been done to death by accused persons.
PW-2 Daya Ram and his family members
went there and they were informed by the
villagers that when Vimla Devi has gone to
collect grass, she was murdered by accused
persons.

16. PW-1 Surya Bhan, who is brother of
deceased, has also made a similar statement
and stated that the marriage of deceased was
solemnized
with
accused-appellant
on
20.06.1998. After some months of marriage,
when she came back to her paternal home, she
told about demand of colour TV and golden
chain being made by the accused-appellant
and also stated that in case the demand is not
fulfilled, her husband has threatened to kill her.
Deceased has also told that appellant Ram
Ajor was having some affair with one Kismati
Devi. PW-1 Surya Bhan and his father have
tried to make the appellant understand by
saying that after some time, they will fulfil his
demands and that they have also given one
buffalo and Rs.2000/- cash to him but despite
that accused-appellant continued to harass the
deceased. PW 1 has further stated that he has
visited his sister only one week prior to the
incident and she told that she was being beaten
and harassed by the accused-appellant. He
furtherstated that on 21.06.2004 when Vimla
has gone to collect grass, she was done to
death by the accused persons by pressing her
neck.

17. PW-3 Kesra Devi is sister of first
informant and she has also deposed that
accused appellant used to harass the deceased
on account of dowry.

18. PW-4 Dr. Mohd. Iqbal has conducted
post mortem.

19. PW-5 Ashok Kumar, Circle Officer
has conducted investigation and PW-6 Head
Constable Daya Shanker Yadav has recorded
FIR and he has also proved inquest report by
way of secondary evidence.

20. In defence evidence, accusedappellant Ram Ajor, himself appeared in to
witness box as DW-1 and he stated that on
day of incident, while he was present at a
tea shop, one girl has informed that his wife
Vimla has got herself hanged at a Katahal
(jackfruit) tree in jungle. He reached at the
spot and brought down her dead body from
the tree and police was informed by him
vide exhibit Kha-1.

21. DW-2 Constable Devi Sharan
Pandey has stated that on 21.06.2004 at
16:05 hours Ram Ajor has submitted a
tehrir, which was registered in general diary
vide entry exhibit Kha-1.

22. Close scrutiny of evidence shows
that marriage of deceased with accused
appellant has taken place in June, 1998 and
alleged incident took place on 21.06.2004
and thus, it is quite apparent that deceased
has suffered death otherwise than under
normal circumstances within seven years of
her marriage. In fact, this fact is not
disputed that incident in question took
place within seven years of the marriage of
deceased. There is clear and consistent
evidence that after marriage, accusedappellant used to demand golden chain and
colour TV as additional dowry and on that
account he harassed the deceased. PW-1
Surya Bhan and PW-2 Daya Ram have
made quite clear and cogent statements.
They have been subjected to crossexamination but no such adverse fact could
emerged so as to affect the substance of
their testimony. PW-1 Surya Bhan is
brother of deceased and PW-2 Daya Ram is
father of deceased and thus, it is quite
natural that deceased would tell them about
the harassment meted out to her. In dowry
10 All. Ram Ajor Vs. State of U.P.
75
death cases direct ocular testimony is rarely
available and in most of such offence direct
evidence is hardly available and such cases
are usually proved by circumstantial
evidence. No material contradiction or
inconsistency could be pointed out in their
testimony. No doubt the first information
report was lodged after two days of
incident and it is also evident from defence
evidence that after the incident, accusedappellant has informed the police, however
the same would not affect the credibility of
PW-1 Surya Bhan and PW-2 Daya Ram,
whose statements appear quite consistent
and cogent. In such matters mere delay of
two days in lodging the first information
report can not be given much importance,
particularly when the statements of material
witnesses appear reliable.

23. A reading of Section 304-B I.P.C.
would show that when a question arises
whether a person has committed the
offence of dowry death of a woman that all
that is necessary is it should be shown that
soon before her unnatural death, which
took place within seven years of the
marriage and the deceased had been
subjected, by such person, to cruelty or
harassment for or in connection with
demand for dowry. If that is shown then the
court shall presume that such a person has
caused the dowry death. It can therefore be
seen that irrespective of the fact whether
such person is directly responsible for the
death of the deceased or not by virtue of the
presumption, he is deemed to have
committed the dowry death if there were
such cruelty or harassment and that if the
unnatural death has occurred within seven
years from the date of marriage. Likewise
there is a presumption under Section 113-B
of the Evidence Act as to the dowry death.
It lays down that the court shall presume
that the person who has subjected the
deceased wife to cruelty soon before her
death shall be presumed to have caused the
dowry death if it is shown that before her
death, such woman had been subjected, by
the accused, to cruelty or harassment in
connection with any demand for dowry. It
can therefore be seen that irrespective of
the fact whether the accused has any direct
connection with the death or not, he shall
be presumed to have committed the dowry
death provided the other requirements
mentioned above are satisfied.(Hem Chand
v. State of Haryana reported in [(1994) 6
SCC 727])

In case of Kashmir Kaur Vs.
State of Punjab, AIR 2013 SC 1039,
Hon'ble Apex Court held that in a case of
trial
for
dowry
death
the
essential
ingredients to attract the provisions of
section 304-B 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) 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.

The necessary ingredients to
prove
the
offence
of
dowry
death
punishable under section 304-B IPC have
been discussed by the Hon'ble Apex Court
time and again. In case of Rajender Singh
Vs State of Punjab Criminal Appeal No.
2321 of 2009, the Hon'ble Apex Court held
as under (para 9 & 10):
76 INDIAN LAW REPORTS ALLAHABAD SERIES

''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.

10, This has been the law stated
in the following judgments:

Ashok
Kumar
v.
State
of
Haryana, (2010) 12 SCC 350 at pages 360361; 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 184185, 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.''

24. Keeping the aforesaid legal
position in mind, it may be seen that in the
instant case, it is not disputed that deceased
died of strangulation within seven years of
her marriage. However, there is no
evidence that deceased was done to death
by the accused-appellant and in view of
defence evidence, it appears that she was
found hanging on a tree, while she has gone
to collect grass. Here it would be pertinent
to mention that even death by suicide also
falls within the ambit of ''death otherwise
than under normal circumstances '' as
contemplated under section 304-B (1) of
IPC. In case Smt. Shanti and anr. vs. State
of Haryana {1991(1) SCC 371} and in
Kans Raj vs. State of Pubjab and ors.
{2000(5) SCC 207} the Hon'ble Apex
Court has held that suicide is one of the
modes of death falling within the ambit of
Section 304-B IPC. In the instant case it is
clear from post-mortem report of deceased
that she died of strangulation. Thus it clear
that death of deceased was ''otherwise than
under normal circumstances''. The evidence
of PW-1 Surya Bhan and PW-2 Daya Ram,
who are brother and father of deceased,
make it clear that deceased was being
harassed on account of demand of a golden
chain and colour TV. In this regard the
statement of PW 1 is consistent with FIR
and his previous statement and it is amply
corroborated by PW 2. There are no
reasons to disbelive their evidence. Thus,
from
the
evidence
on
record,
the
prosecution has proved that the deceased
suffered unnatural death within 7 years of
her marriage and that she was treated with
cruelty in relation to demand of dowry.

25. At this stage it would be pertinent
of mention that Section 113-B of the
Evidence Act mandates that the Court has
to raise the statutory presumption in a case
where it is shown that soon before her
death such woman has been subjected to
cruelty or harassment for or in connection
with any demand of dowry.

In case of Banshi Lal Vs. Hate of
Haryana, AIR 2011 SC 691 has held 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
10 All. Ram Ajor Vs. State of U.P.
77
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
304-B I.P.C.

In Mustafa Shahdal Shaikh Vs.
State of Maharashtra, AIR 2013 SC 851 it
was observed by the Hon'ble Apex Court
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.

Similarly in Kaliyaperumal Vs.
State of Tamil Nadu, AIR 2003 SC 3828 it
was held that that the expression 'Soon
before her death" used in the substantive
section 304-B I.P.C. and section 113-B 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.

The Hon'ble Supreme Court in
Prem Kumar vs. State of Rajasthan 2009
(3) SCC 726 held:-

''Presumption under Section 113B is a presumption of law. On proof of the
essentials mentioned therein, it becomes
obligatory on the court to raise a
presumption that the accused caused the
dowry death. 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.
(This means that the presumption can be
raised only if the accused is being tried for
the offence under Section 304-B IPC.) (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.

It was held that there must be material
to show that soon before her death the
victim
was
subjected
to
cruelty
or
harassment. The expression ''soon before' is
very relevant where Section 113-B of the
Evidence Act and Section 304-B IPC 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 the aforesaid
presumption operates. ''Soon before' is a
relative term and it would depend upon the
circumstances of each case and no
straitjacket formula can be laid down as to
what would constitute a period of soon
before the occurrence. It was further
observed that it would be hazardous to
indicate any fixed period, and that brings in
the importance of a proximity test both for
the proof of an offence of dowry death as
well as for raising a presumption under
Section 113-B of the Evidence Act.
78 INDIAN LAW REPORTS ALLAHABAD SERIES

26. In the case in hand, as pointed out
earlier, both PW 1 Surya Bhan and PW 2
Daya Ram have made consistent statements
that since after some time of marriage,
deceased was continuously being harassed
on account of dowry demand of golden
chain and colour TV. PW 1 Surya Bhan has
stated that his father has given a buffalo
and cash of Rs 2000/ to accused-appellant
for purchasing a TV but despite that he
continued to harass the deceased. PW 1 has
stated that he often used to visit the
matrimonial home of deceased to enquire
her well being but she used to tell him that
she was being harassed for dowry and that
only one week prior to the incident, he has
visited the matrimonial home of his sister
and she has told she was being beaten for
dowry and she has also shown injuries
suffered by her. This version is amply
supported by PW 2 Dayaram. The accusedappellant has not taken any such specific
plea that PW 1 did not visit his house one
week prior of incident. Thus it is apparent
that there is evidence that till one week
prior of the incident, the deceased was
continuously being harassed for demand
dowry. There is absolutely nothing to
indicate that this cruelty and harassment
has
ever
ceased
till
the
incident.
Considering entire evidence, it is manifest
that there is a proximate connection
between the demand of dowry and act of
cruelty / harassment and the death of
deceased. The interval between cruelty and
death of deceased is not much and such gap
has to be examined in the attending facts
and circumstances of the matter. In view of
evidence there appears a proximate and live
link between the effect or cruelty based on
dowry demand and the death of deceased.
As observed by the Hon'ble Apex Court,
the determination of the period which can
come within the term "soon before" is to be
determined by courts, depending upon facts
and circumstances of each case and it
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.
Considering the evidence in light of
peculiar facts and circumstances of the
instant case as well as the position of law, it
is established that the deceased was
continuously being harassed on account of
dowry demand of golden chain and colour
TV and there is evidence that till one week
prior of the incident, deceased was
continuously being harassed for demand
dowry. As noticed earlier there is absolutely
nothing to indicate that this cruelty and
harassment has ever ceased till the incident.
Considering entire evidence, it is manifest
that there is a proximate connection
between the demand of dowry made by the
accused-appellant and act of cruelty or
harassment and the death of deceased.
There is a live link between the effect or
cruelty meted out to the deceased based on
dowry demand and the death of deceased.
Thus, it established that deceased was
subjected to cruelty or harassment by her
husband / accused-appellant in connection
with demand for dowry and that such
cruelty or harassment was soon before her
death. In view of the evidence, the
presumption enshrined under section 113-B
Evidence Act can safely be raised against
accused-appellant appellant.

27.

Applying
the
presumption
enshrined under section 113-B Evidence
Act, once the initial burden of showing that
the woman was subject to cruelty or
harassment for or in connection with any
demand of dowry soon before her death is
discharged by the prosecution, the Court
has to presume that such person has caused
a dowry death. In Yashoda v. State of M.P.
(2004) 3 SCC 98, the Hon'ble Apex Court
10 All. Ram Ajor Vs. State of U.P.
79
held that once the ingredients of Section
304-B IPC are fulfilled, the onus shifts to
the defence to produce evidence to rebut
the statutory presumption and to whom that
the death was in the normal course with
which the accused were not connected. The
Court observed:

"13.......Once the prosecution
proves the facts which give rise to the
presumption under Section 304-B IPC,
the onus shifts to the defence and it is for
the defence to produce evidence to rebut
that presumption. The defence may
adduce evidence in support of its defence
or
may
make
suggestions
to
the
prosecution witnesses to elicit facts which
may support their defence. The evidence
produced by the defence may disclose
that the death was not caused by them, or
that the death took place in normal
course on account of any ailment or
disease suffered by the deceased or that
the death took place in a manner with
which they were not at all connected. In
the instant case if the defence wanted to
prove that the deceased had suffered from
diarrhoea and vomiting and that resulted
in her death, it was for the defence to
adduce
evidence
and
rebut
the
presumption that arose under Section
304-B IPC. The defence could have
examined the doctor concerned or even
summoned the record from the hospital to
prove that in fact the deceased has
suffered such ailment and had also been
treated for such ailment."

28. So once the court raises
presumption
under
section
113-B
Evidence Act, the court has no option but
to presume that the accused had caused
dowry death unless the accused disproves
it. It is a statutory compulsion on the
Court. However, it is open to the accused
to adduce such evidence for disproving
the said compulsory presumption, as the
burden is unmistakably on him to do so.
In the instant case, the accused-appellant
has failed to rebut the said presumption.
As stated earlier, from evidence on record
it is established that deceased Vimla was
subjected to cruelty or harassment by her
husband / appellant in connection with
the demand for dowry and that such
cruelty and harassment was soon before
her death. It is also established that
deceased suffered death otherwise than
under normal circumstances within seven
years of her marriage. In view of the
evidence
on
record
coupled
with
presumption prescribed under section
113-B Evidence Act, we reach to
conclusion that conviction of accusedappellant under section 498-A, 304-B
IPC and section 4 DP Act is based on
evidence and accordingly conviction of
accused-appellant for said charges is
hereby affirmed.

29. So far as quantum of sentence is
concerned, it was submitted by learned
counsel for the appellant that the trial court
has
awarded
maximum
sentence
ie
imprisonment for life, without considering
the relevant facts and the sentence awarded
to accused-appellant is quite excessive and
arbitrary. It was stated that marriage of
deceased has taken place six years prior of
the incident and that soon after the incident,
accused-appellant himself has informed
police vide exhibit kha-1. Out of this
wedlock, they were blessed with three
children and appellant has to take care of
them. The accused-appellant has not caused
any injury to the deceased and that she
committed suicide by hanging on a tree.
Lastly it was submitted that accusedappellant is in jail since last 16 years as he
was never granted bail. It was submitted
80 INDIAN LAW REPORTS ALLAHABAD SERIES
that sentence already under gone by the
accused-appellant is more than sufficient
and deterent for the crime of accusedappellant.

30. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence and the manner in which it was
executed or committed. It is obligation of
Court to constantly remind itself that right
of victim, and be it said, on certain
occasions persons aggrieved as well as
society at large can be victims, never be
marginalised. The measure of punishment
should be proportionate to gravity of
offence. Object of sentencing should be to
protect society and to deter the criminal in
achieving avowed object of law. Further, it
is expected that Courts would operate the
sentencing system so as to impose such
sentence which reflects conscience of
society and sentencing process has to be
stern where it should be. The Court will be
failing in its duty if appropriate punishment
is not awarded for a crime, which has been
committed not only against individual
victim but also against society to which
criminal and victim belong. Punishment to
be awarded for a crime must not be
irrelevant but it should conform to and be
consistent with the atrocity and brutality
with which the crime has been perpetrated,
enormity of crime warranting public
abhorrence and it should 'respond to
society's cry for justice against the
criminal'. [Vice Sumer Singh Vs. Surajbhan
Singh and others, (2014) 7 SCC 323, Sham
Sunder Vs. Puran, (1990) 4 SCC 731, M.P.
Vs. Saleem, (2005) 5 SCC 554, Ravji Vs.
State of Rajasthan, (1996) 2 SCC 175].

31. Hon'ble Apex Court in the case of
V.K.
Mishra
& Anr. Vs.
State
of
Uttarakhand & Anr., 2015 Law Suit (SC)
665 in para nos. 40 and 41 of the judgment
has held as under:-

"40. For the offence under
section 304-B IPC, the punishment is
imprisonment for a term which shall not be
less than seven years but which may extend
to imprisonment for life. Section 304B IPC
thus prescribes statutory minimum of seven
years. In Kulwant Singh & Ors. vs. State of
Punjab, (2013) 4 SCC 177, while dealing
with dowry death Section 304B and 498A
IPC in which death was caused by
poisoning within seven years of marriage
conviction was affirmed. In the said case,
the father-in-law was about eighty years
and his legs had been amputated because
of severe diabetes and mother-in-law was
seventy eight years of age and the Supreme
Court held impermissibility of reduction of
sentence on the ground of sympathy below
the statutory minimum.

41. As per prison records, the
accused-Rahul Mishra is in custody for
more than five years which includes
remission. Bearing in mind the facts and
circumstances
of
the
case
and
the
occurrence was of the year 1997 and that
the accused Rahul Mishra is in custody for
more than five years, interest of justice
would be met if life imprisonment awarded
to him is reduced to imprisonment for a
period of ten years. Appellants V.K. Mishra
and Neelima Mishra, each of them have
undergone imprisonment of more than one
year. Appellants No. 1 and 2 are aged
about seventy and sixty four years and are
said to be suffering from various ailments.
Considering their age and ailments and
facts and circumstances of the case, life
imprisonment imposed on appellants V.K.
Mishra and Neelima Mishra is also
reduced to imprisonment of seven years
each."
10 All. Ram Ajor Vs. State of U.P.
81

Hon'ble Apex Court in the case of
Hem Chand Vs. State of Haryana, [(1994)
6 SCC 727] in para no. 7 of the judgment
has held as under:-

"7. Now coming to the question of
sentence, it can be seen thatSection 304-B
I.P.C., lays down that "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." The point for
consideration is whether the extreme
punishment of imprisonment for life is
warranted in the instant case. A reading of
Section 304-B IPC would show that when a
question arises whether a person has
committed the offence of dowry death of a
woman what all that is necessary is it
should be shown that soon before her
unnatural death, which took place within
seven years of the marriage, the deceased
had been subjected, by such person, to
cruelty or harassment for or in connection
with demand for dowry. If that is shown
then the court shall presume that such a
person has caused the dowry death. It can
therefore be seen that irrespective of the
fact whether such person is directly
responsible for the death of the deceased or
not by virtue of the presumption, he is
deemed to have committed the dowry death
if there were such cruelty or harassment
and that if the unnatural death has
occurred within seven years from the date
of
marriage.
Likewise
there
is
a
presumption under Section 113-B of the
Evidence Act as to the dowry death. It lays
down that the court shall presume that the
person who has subjected the deceased
wife to cruelty before her death shall
presume to have caused the dowry death if
it is shown that before her death, such
woman had been subjected, by the accused,
to cruelty or harassment in connection with
any demand for dowry. Practically this is
the presumption that has been incorporated
in Section 304-B I.P.C. also. It can
therefore be seen that irrespective of the
fact whether the accused has any direct
connection With the death or not, he shall
be presumed to have committed the dowry
death provided the other requirements
mentioned above are satisfied. In the
instant case no doubt the prosecution has
proved that the deceased died an unnatural
death namely due to strangulation, but
there is no direct evidence connecting the
accused. It is also important to note in this
context that there is no charge under
Section 302 I.P.C. The trial court also
noted that there were two sets of medical
evidence on the file in respect of the death
of the deceased. Dr. Usha Rani, P.W. 6 and
Dr. Indu Latit, P.W.