# Ram Shanker & Anr v. State of U.P

- **Citation:** (2020) 11 ILRA 431
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-10
- **Case number:** Criminal Appeal No. 75 of 2002
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shanker-anr-v-state-of-u-p-45418
- **Pages:** 16

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 498-A, 304B, 120B -. Dowry
Prohibition Act., 1961
-Section 3⁄4
-
Criminal
appeal
has
been
filed
against
conviction.

Evidence Law -Evidence Act, 1872 -
Section 113-B - Indian Penal Code,1860
Section 304-B, 498-A - Dowry Prohibition
Act., 1961 - Section 2 are discussed: -

Meaning of soon before death - does not
mean just before death or immediately before
death of the deceased. It was subjected to
432 INDIAN LAW REPORTS ALLAHABAD SERIES
torture, cruelty or harassment by the her in-laws
due to demand of dowry. ( Para 23)

Physical Cruelty - Actual beating or causing
pain and harm to the person of a woman. (Para
25)

Mental Cruelty - It can be verbal and emotional
like insulting or ridiculing or humiliating a woman.
(Para 25)

We hasten to add that this is not a correct
reflection of the law. "Soon before" is not
synonymous with "immediately before".
(Para 25)

Delay in lodging the F.I.R. depends upon
facts and circumstances of the each case -
It cannot be treated fatal to the prosecution story.
(Para 39)

Impugned Judgment and order passed by the
Trial Court is to be affirm. (Para 45)

Appeal Dismissed. (E-2)

List of Cases Cited:-

## Text

_Characters 0–39,748 of 53,892. This is a partial read: ask again with offset=39748 for what follows._

11 All. Ram Shanker & Anr. Vs. State of U.P.
431
convicted by the trial court on 16.12.1986
and instant appeal is pending before this
Court since 1987. As such appellant has
already suffered the regours of protracted
trial and mental agony due to long
pendency of criminal proceedings against
him. Therefore, no useful purpose would be
served in sending appellant back to jail
after 37 years of the incident. Appellant has
re-built his roots in the society as a law
abiding person. In this background, it
would be unjust to uproot him at this
belated stage.

31. Considering the facts and
circumstances
of
the
case
and
the
substantive period already undergone by
the appellant in this case and the fact that
the appellant is an old person and that he
has realized the mistake committed by him
and is remorseful of his conduct to the
society to which he belongs and now he
wants to transform himself, I am of the
considered opinion that he should be given
a chance to reform himself and his better
contribution to the society to which he
belongs to.

32. Consequently, the conviction of
the appellant stands affirmed. The sentence
is modified and the period already
undergone by the appellant in this case, i.e.
38 days is taken as his substantive sentence
under Section 366 IPC.

33. The appeal stands partly allowed.

34. The appellant is on bail. His bail
bonds
are
cancelled
and
sureties
discharged.

35. Office is directed to transmit a
copy of this order to the learned Sessions
Judge, Budaun.

36. Office is also directed to send
back the record of the trial court
immediately.

37. It is directed that in case certified
copy of this judgment is not issued due to
COVID-19 pandemic, the copy of the
judgment downloaded from the official
website of the Allahabad High Court shall
be acted upon.
----------
(2020)11ILR A431
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.11.2020

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 75 of 2002

Ram Shanker & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Jai Singh Chauhan, Dilip Pandey, Shishir
Pradhan

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code,1860 -
Sections 498-A, 304B, 120B -. Dowry
Prohibition Act., 1961
-Section 3⁄4
-
Criminal
appeal
has
been
filed
against
conviction.

Evidence Law -Evidence Act, 1872 -
Section 113-B - Indian Penal Code,1860
Section 304-B, 498-A - Dowry Prohibition
Act., 1961 - Section 2 are discussed: -

Meaning of soon before death - does not
mean just before death or immediately before
death of the deceased. It was subjected to
432 INDIAN LAW REPORTS ALLAHABAD SERIES
torture, cruelty or harassment by the her in-laws
due to demand of dowry. ( Para 23)

Physical Cruelty - Actual beating or causing
pain and harm to the person of a woman. (Para
25)

Mental Cruelty - It can be verbal and emotional
like insulting or ridiculing or humiliating a woman.
(Para 25)

We hasten to add that this is not a correct
reflection of the law. "Soon before" is not
synonymous with "immediately before".
(Para 25)

Delay in lodging the F.I.R. depends upon
facts and circumstances of the each case -
It cannot be treated fatal to the prosecution story.
(Para 39)

Impugned Judgment and order passed by the
Trial Court is to be affirm. (Para 45)

Appeal Dismissed. (E-2)

List of Cases Cited:-

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

2. Rajindar Singh Vs St. of Punj., AIR 2015 SC
1359

3. Surindra Singh Vs St. of Har., (2014) 4 SCC 129

4. Sher Singh Vs St. of Har., (2015) 3 SCC 724

5. Dinesh Vs St. of Har., (2014) 12 SCC 532

6. Sher Singh Vs St. of Har., 2015 (1) SCALE 250,

7. Dinesh Vs St. of Har., 2014 (5) SCALE 641

8. Trimukh Maroti Kirkan Vs St. of Mah. (2006) 10
SCC 681

9. Preet Pal Singh Vs St. of U.P., AIR 2020 SC 3995
10. Tara Singh & ors. Vs St. of Pun., AIR 1991 SC
63

11. St. of M.P. Vs Saleem @ Chamaru, AIR 2005
SC 3996

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. This appeal has been preferred
against the judgment and order dated
19.01.2002 passed by Additional Sessions
Judge, Fast Track Court-II, Rai Bareli in
Sessions Trial No.188/95 arising out of
Case Crime No.63/95 under Sections-498A, 304B, 120B I.P.C. and Section 3⁄4 Dowry
Prohibition Act 1986 (in short D.P. Act),
Police Station-Lalganj, District-Rai Bareli,
whereby the appellants-Ram Shankar and
Kamlesh Kumar have been convicted and
sentenced for the offence under Section
304B I.P.C. for seven years rigorous
imprisonment, for the offence under
Section 498A I.P.C. for two years rigorous
imprisonment and fine of Rs.1000/- each
and for the offence under Section 4 D.P.
Act for one year rigorous imprisonment
and fine of Rs.1000/- each. It has further
been directed that the appellants have to go
undergo three months imprisonment in
default of payment of fine for offence
under Section 498A I.P.C. and three
months imprisonment in default of payment
of fine for offence under Section 4 D. P.
Act. All the sentences have been directed to
run concurrently.

2. The prosecution story, in brief, is
that the deceased, Dhanpati, daughter of
Lal Bahadur (P.W.-1) (informant), was
married to the appellant-Kamlesh Kumar in
the year 1992. On 25.02.1995 at 6:30 a.m.
Lal
Bahadur
(P.W.-1)
lodged
first
information report (in short F.I.R.) (Ext.
Ka-1) at P.S.-Lalganj, District-Raibareli
11 All. Ram Shanker & Anr. Vs. State of U.P.
433
alleging that after her marriage the
appellant was asking Rs.20,000/- and a
motorcycle as a dowry and on account of
non-fulfillment of dowry, the appellantKamlesh Kumar, his sister-Ram Payari (coaccused) and his father, the appellant-Ram
Shankar (since deceased) used to harass
and torture the deceased and had forcibly
taken her all the jewellery. It is further
stated in the F.I.R. that on 24.02.1995 the
appellant-Kamlesh
Kumar,
co-accused
(Ram
Pyari)
and
the
appellant-Ram
Shanker (since deceased) caused death of
the deceased, Dhanpati, aged about 22
years, by setting her on fire.

3. On the said information (Ext. Ka1), chik report (Ext.-Ka-3) was registered
as Crime No.63/95, under Section 498-A,
304-B & Section 3⁄4 D.P. Act against the
appellant-Kamlesh
Kumar,
co-accusedRam Pyari and the appellant-Ram Shankar
(since deceased) and the same was entered
into General Diary (Ext. Ka-4) by Head
Constable,
Ram
Sharma
(P.W.-4).
Investigation was handed over to Dy. S. P.,
Rajendra Kumar Pandey (P.W.-6).

4. Sri Ram Das (P.W.-5), Executive
Magistrate/Tehsildar
was
deputed
to
conduct the inquest of the deceased, who
reached the place of occurrence on
25.02.1995,
conducted
the
inquest
proceeding, prepared inquest report (Ext.-
Ka-5) on 25.02.1995 at about 10:00 a.m.,
sealed the dead body of the deceased,
prepared relevant police papers (Ext.-Ka-6
to Ext.-Ka-10) and sent it for post-mortem
examination to District Hospital, Raibareli.

5. Dr. R. P. Verma (P.W.3) and late
Dr. S. K. Singh jointly conducted the
post-mortem
examination
of
the
deceased-Dhanpati @ Dhanno, prepared
post-mortem
report
(Ext.-Ka-2)
and
found the following anti-mortem injuries
on her body :-

(I) Superficial to deep burn
injuries on whole body containing red
color riges.

(ii) Bloody froth was coming
out from both nostrils.

6. In internal examination, it was
found that brain including its membrane,
lungs trachea were conjugated, both side
of heart was full of blood, stomach was
swollen
containing
150
gm.
liquid
material.

7. According to him (P.W.-3), the
deceased had died due to shock, caused
by anti mortem burn injury, at any time in
the morning of 24.02.2005.

8. Dy. S. P. Rajendra Kumar Pandey
(P.W.-6), during investigation, visited the
place of occurrence, prepared the site
plan (Ext.-Ka-11), recorded the statement
of witnesses, perused the inquest report
as well as post-mortem report and filed
charge sheet (Ext.-Ka-12) against the
appellant Kamlesh Kumar, co-accusedRam Pyari and the appellant Ram
Shanker (since deceased) before the
concerned
Magistrate,
who
after
providing the copy of relevant police
papers as required under Section 207 of
Criminal
Procedure
Code,
1973
(hereinafter referred to as Code) to the
appellant
and
other
co-accused,
committed the case to Sessions Judge,
Raibareli for trial.

9. The charges were framed against
the appellant-Kamlesh Kumar, co-accusedRam Pyari and the appellant-Ram Shankar
(since deceased), who denied the charges
and claimed for trial.
434 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The prosecution, in order to prove
its case, examined the Lal Bahadur (P.W.-
1), Harsh Bahadur (P.W.2), Dr. R. B.
Verma (P.W-3), Head Constable, Ram
Sharma (P.W.-4), Executive Magistrate
Ram Das (P.W.-5) and Investigating
Officer, Rajendra Kumar Pandey (P.W.-6).

11. After the prosecution evidence,
the statements of the appellants and other
co-accused were recorded under Section
313 of the Code, who admitted that
deceased had died due to burn injury,
inside their house, within three years of her
marriage but denied the prosecution story
and stated that they have been falsely
implicated. The appellant-Kamlesh Kumar
stated that the deceased-Dhanpati wanted to
go with him to Mumbai but he refused as
his mother was disabled and due to his
refusal, the deceased committed suicide by
setting herself on fire. He further stated that
he had given information of the said
occurrence on same day at police station.
The
appellant-Ram
Shanker
(since
deceased) further stated that after death of
the deceased, her father and brother asked
money from him and due to his refusal, he
had been falsely implicated in this case.

12. To controvert the prosecution
story, the appellants in their defence
examined Mohd. Jarmish Khan (D.W.-1),
Ram Baran (D.W.-2) and H.C.P.-Sri Ram
Sharma (D.W.-3).

13. The trial Court, after hearing the
learned counsel for the appellants as well as
counsel appearing for the State and
considering the material available on
record,
convicted
and
sentenced
the
appellant-Kamlesh
Kumar
and
the
appellant-Ram Shanker (since deceased)
and acquitted the co-accused, Ram Pyari
vide
impugned
judgment
and
order.
Aggrieved with the said judgment, this
appeal has been preferred by the appellants.

14. During the pendency of the
appeal, the appellant, Ram Shanker died
and his appeal has been abated vide order
dated 03.05.2018.

15. Heard Sri Shishir Pradhan,
learned counsel for the appellant and Sri G.
D. Bhatt, learned A.G.A. for the State.

16. Learned counsel for the appellant
has submitted that the appellant is innocent
and has been falsely implicated in this case.
Learned counsel further submitted that
there was no demand of dowry from the
side of the appellant as no complaint was
made by the informant to any authority in
this regard prior to this occurrence and no
cruelty or harrasment was caused to the
deceased soon before her death. The
appellant was doing job in Mumbai and at
the time of occurrence he had come to see
his ailing mother. Learned counsel further
submitted that the deceased was insisting to
go Mumbai with the appellant but due to
low income of the appellant, he advised the
deceased to stay at his house with the
mother for her service. Learned counsel
further submitted that due to denial of the
appellant, the deceased in frustration had
committed suicide by setting her on fire
inside in a room. Learned counsel further
submitted that in order to save the
deceased,
the
appellant,
his
family
members and other co-villagers had broken
and pulled down the door by axe and spade
but could not save the deceased as she had
died by burn injuries. Learned counsel
further
submitted
that
thereafter
the
appellant informed the concerned police
station on same day in the evening and also
informed
his
father-in-law
(P.W.-1).
Learned counsel further submitted that
11 All. Ram Shanker & Anr. Vs. State of U.P.
435
F.I.R. was lodged by delay of more than 24
hrs without any explanation by P.W.-1 after
due consultation to extract money from
appellants.
Learned
counsel
further
submitted that the impugned judgment and
order passed by trial Court is against the
settled principle of law as well as evidence
available on record, which is is liable to be
set aside and the appeal be allowed.

17. Per contra, learned A.G.A.
vehemently opposing the submission of
learned counsel for the appellant, submitted
that the prosecution has successfully proved
its case beyond reasonable doubt. Learned
A.G.A. further submitted that at the time of
occurrence the appellant was sleeping with
the deceased and had caused the death of the
deceased due to demand of dowry. Learned
A.G.A. further submitted that the information
given by the appellant at police station after
12 hours of the occurrence, was in order to
create a false story in his defence. Learned
A.G.A. further submitted that deceased had
died inside the house of the appellant and as
the informant (P.W.-1) got information, he
lodged F.I.R., therefore there is no delay in
lodging the F.I.R. Learned A.G.A. further
submitted that the fact that the appellant, who
was present at the time of occurrence with the
deceased and his version that deceased died
due to suicidal burn injury is totally false as
no sign, symptoms or evidence of suicide was
found from the place of occurrence. Learned
A.G.A. further submitted that neither any
inflammable articles such as match box,
kerosene oil etc. was found nor recovered
from the place of occurrence by the
Investigating Officer. Learned A.G.A. further
submitted that the ocular evidence is
supported with the medical evidence and
there is no illegality in the impugned
judgment and order passed by trial Court and
the appeal is liable to be dismissed.

18. I have heard the rival submissions
advanced by learned counsel for both the
parties and perused the record.

19. Before considering the evidence
available on record, led by both parties, in
the light of argument advanced by the
learned counsel for the parties, it is
necessary to refer the relevant provision of
law relating to the offence in question i.e.
Section 304-B and Section 498-A I.P.C.,
Section 113-B of Indian Evidence Act and
Section 2 Dowry Prohibition Act, 1961
which are as under:-

Section 304-B (1) Where the
death of a woman is caused by any burns
or bodily injury or occurs otherwise than
under normal circumstances within seven
years of her marriage and it is shown that
soon before her death she was subjected to
cruelty or harassment by her husband or
any relative of her husband for, or in
connection with, any demand for dowry,
such death shall be called "dowry death",
and such husband or relative shall be
deemed
to
have
caused
her
death.
Explanation.--For the purpose of this subsection, "dowry" shall have the same
meaning as in section 2 of the Dowry
Prohibition Act, 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.

Section
498-A
Husband
or
relative of husband of a woman subjecting
her
to
cruelty.--Whoever,
being
the
husband or the relative of the husband of a
woman, subjects such woman to cruelty
shall be punished with imprisonment for a
term which may extend to three years and
shall also be liable to fine. Explanation.--
436 INDIAN LAW REPORTS ALLAHABAD SERIES
For the purpose of this section, "cruelty"
means

(a) any wilful conduct which is of
such a nature as is likely to drive the
woman to commit suicide or to cause grave
injury or danger to life, limb or health
(whether mental or physical) of the woman;
or

(b) harassment of the woman
where such harassment is with a view to
coercing her or any person related to her
to meet any unlawful demand for any
property or valuable security or is on
account of failure by her or any person
related to her to meet such demand.

Section
113-B
of
Indian
Evidence Act-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.
Explanation.--For the purposes of this
section, "dowry death" shall have the same
meaning as in section 304B, of the Indian
Penal Code.

Section 2 of Dowry Prohibition
Act-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 parent of either party
to a marriage or by any other person, to
either party to the marriage or to any other
person."

20. The above provision, related with
dowry death, clearly shows that if the death
of any women is caused within seven years
of her marriage by burn "or otherwise than
under normal circumstances" and it is
shown that if soon before the death of such
women, she was subjected to cruelty or
harassment by her husband or any relative
of her husband, in connection with demand
for dowry and if the prosecution succeeds
to prove the above ingredient, such death
shall be called as dowry death. In addition
to above, Section 113-B of Indian Evidence
Act further provides that in such cases, if it
is shown that such women was subjected,
soon before her death by the accused, to
cruelty or harassment for in or connection
with any demand for dowry, the Court shall
presume that such accused had caused the
dowry death.

21. Admittedly the appellant is
husband of deceased-Dhanpati, who had
died inside the house of the appellant
within seven years of her marriage. This
fact has been admitted by the appellant in
his statement under Section 313 of the
Code and also stated by Ram Baran (D.W.-
2), who in his examination-in-chief has
specifically stated that on the day of
occurrence at about 7:00 a.m. he, upon
hearing the noise and seeing the smoke
coming out from the house of the appellant,
reached at the house of the appellant. He
further stated that Nanhe, Sukhdin, Ram
Murat and so many villagers had also
reached there. He further stated that the
appellant-Kamlesh Kumar was trying to cut
the door and they had also tried to cut that
door but could not succeed as the handle of
axe was broken. Thereafter they pulled
down the door by spade and saw that the
deceased, wife of the appellant-Kamlesh
Kumar, had been burnt.

22. Thus it has only to be seen
whether any cruelty or harassment was
caused to deceased soon before her death
due to demand of dowry or not.
11 All. Ram Shanker & Anr. Vs. State of U.P.
437

23. The term "soon before death"
used in Section 304-B I.P.C. and 113-B of
Evidence Act has neither been explained
nor defined either in I.P.C. or in Evidence
Act and the term "it is shown" that soon
before
her
death
the deceased
was
subjected to cruelty or harassment by her
husband or any relative of her husband for,
or in connection with, any demand of
dowry, as condition precedent for dowry
death, shows that the factum of cruelty or
harassment by the appellant with the
deceased soon before death of deceased is
not required to be proved by prosecution
beyond reasonable doubt. This fact may be
proved by the prosecution by showing the
facts and circumstances soon before death
of deceased. In addition to above the term
"soon before death" does not mean just
before death or immediately before death
of deceased, she was subjected to torture,
cruelty or harassment by her in-laws due to
demand of dowry.

24. Hon'ble Supreme Court while
discussing the object and purpose of
Section 304-B I.P.C. and the scope of
relevancy and meaning of phrase "soon
before death of deceased" contained
therein, in Kans Raj vs. State of Punjab
(2000) 5 SCC 207 has held as under :

"15. It is further contended on
behalf
of
the
respondents
that
the
statements of the deceased referred to the
instances could not be termed to be cruelty
or harassment by the husband soon before
her death. "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 nonexistence 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.

16.
No
presumption
under
Section 113-B of the Evidence Act would be
drawn against the accused if it is shown
that after the alleged demand, cruelty or
harassment the dispute stood resolved and
there was no evidence of cruelty and
harassment thereafter. Mere lapse of some
time by itself would not provide to an
accused a defence, if the course of conduct
relating to cruelty or harassment in
connection with the dowry demand is
shown to have existed earlier in time not
438 INDIAN LAW REPORTS ALLAHABAD SERIES
too late and not too stale before the date of
death of the woman. The reliance placed by
the learned counsel for the respondents on
Sham Lal v. State of Haryana [(1997) 9
SCC 759 : 1997 SCC (Cri) 759] is of no
help to them, as in that case the evidence
was brought on record to show that attempt
had been made to patch up between the two
sides for which a panchayat was held in
which it was resolved that the deceased
would go back to the nuptial home
pursuant to which she was taken by the
husband to his house. Such a panchayat
was shown to have been held about 10 to
15 days prior to the occurrence of the case.
There was nothing on record to show that
the deceased was either treated with
cruelty or harassed with the demand of
dowry during the period between her
having taken to the nuptial home and her
tragic end. Such is not the position in the
instant case as the continuous harassment
to the deceased is never shown to have
settled or resolved."

25. In Rajindar Singh vs. State of
Punjab, AIR 2015 SC 1359, three Judges
Bench of Hon'ble Supreme Court while
placing reliance on the law laid down in
Kans Raj (Supra), affirming the law laid
down in Surindra Singh vs. State of
Haryana, 2014 (4) SCC 129 and Sher
Singh vs. State of Haryana, (2015) 3 SCC
724 and partly overruling the law laid down
in Dinesh vs. State of Haryana, (2014) 12
SCC 532 has held as under :

".......We, therefore, declare that
any money or property or valuable security
demanded by any of the persons mentioned
in Section 2 of the Dowry Prohibition Act,
at or before or at any time after the
marriage which is reasonably connected to
the death of a married woman, would
necessarily be in connection with or in
relation to the marriage unless, the facts of
a given case clearly and unequivocally
point otherwise. Coming now to the other
important ingredient of Section 304B- what
exactly is meant by "soon before her
death"?

21. This Court in Surinder Singh
v. State of Haryana (2014) 4 SCC 129, had
this to say:

"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. 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
11 All. Ram Shanker & Anr. Vs. State of U.P.
439
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 nonexistence 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."

22. In another recent judgment in
Sher Singh v. State of Haryana, 2015 (1)
SCALE 250, this Court said:

"We are aware that the word
'soon' finds place in Section 304B; 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
cause for the death under Section 304 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." (at page 262)

23. We endorse what has been
said by these two decisions. Days or
months are not what is to be seen. What
must be borne in mind is that the word
"soon" does not mean "immediate". A fair
and pragmatic construction keeping in
mind the great social evil that has led to the
enactment of Section 304B would make it
440 INDIAN LAW REPORTS ALLAHABAD SERIES
clear that the expression is a relative
expression. Time lags may differ from case
to case. All that is necessary is that the
demand for dowry should not be stale but
should be the continuing cause for the
death of the married woman under Section
304B.

24. At this stage, it is important to
notice a recent judgment of this Court in
Dinesh v. State of Haryana, 2014 (5)
SCALE 641 in which the law was stated
thus:

"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." (at
page 646)

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

26. Lal Bahadur (P.W.-1), father of
the deceased, in his examination-in-chief,
stating that the deceased-Dhanpati was
married to the appellant-Kamlesh Kumar in
May, 1992, the appellant-Ram Shankar
(since deceased) was her father-in-law
whereas the co-accused-Ram Pyari was her
sister-in-law (nand), has stated that he had
given sufficient dowry and gift at the time
of marriage of his daughter. He further
stated that the appellant used to harass and
torture
his
daughter
by
demanding
Rs.20,000/- and one motorcycle as a
dowry. He further stated that since he could
not succeed to fulfill the said demand of
dowry, the appellants had snatched the
ornaments of the deceased and used to beat
her. He further stated that the deceased was
killed by setting her on fire in her
matrimonial house within three years of her
marriage. He, in his cross-examination,
further stated that his daughter was not
happy and again stated that after one year
of her marriage the appellant-Kamlesh
Kumar had asked him for Rs.20,000/- and
one motorcycle as dowry. He further stated
that the deceased had also told this fact
when he had gone to her matrimonial house
to take her back (Bidai). He further stated
that when the appellant-Kamlesh Kumar
had come to his house to take the deceased
back (Bidai) he again put demand of said
dowry. Harsh Bahadur (P.W.-2), brother of
the deceased has also stated the fact of
aforesaid demand of dowry as stated by Lal
Bahadur (P.W.-1). Thus, it is clear that the
appellants were continuously demanding
Rs.20,000/- and one motorcycle as a dowry
from the deceased as well as her father, Lal
Bahadur (P.W.-1) and due to its nonfulfillment they used to torture and harass
her soon before her death.

27. At this juncture it is also pertinent
to note that in most of the cases the dowry
death of deceased is caused inside the
house of the accused persons and all the
relevant facts as well as incriminating
evidence are only in the knowledge of the
accused persons but they do not come
forward to disclose the fact, happened to
the deceased soon before her death. So the
prosecution cannot be blamed to produce
such evidence which is not in the
possession and knowledge of prosecution
witnesses.

28. In Trimukh Maroti Kirkan vs.
State of Maharashtra 2006 (10) SCC 681
11 All. Ram Shanker & Anr. Vs. State of U.P.
441
where accused was charged for committing
murder of his wife for want of dowry and it
was established by the prosecution that
shortly before the offence, he was seen
with his wife inside his house where he and
his wife were normally used to reside.
Hon'ble Supreme Court has held as under :

"Where an accused is alleged to
have committed the murder of his wife
and the prosecution succeeds in leading
evidence to show that shortly before the
commission of crime they were seen
together or the offence takes placed in the
dwelling home where the husband also
normally resided, it has been consistently
held that if the accused does not offer any
explanation how the wife received injuries
or offers an explanation which is found to
be false, it is a strong circumstance which
indicates that he is responsible for
commission of the crime. In Nika Ram v.
State of Himachal Pradesh AIR 1972 SC
2077 it was observed that the fact that the
accused alone was with his wife in the
house when she was murdered there with
'khokhri' and the fact that the relations of
the accused with her were strained would,
in the absence of any cogent explanation by
him, point to his guilt. In Ganeshlal v. State
of Maharashtra (1992) 3 SCC 106 the
appellant was prosecuted for the murder of
his wife which took place inside his house.
It was observed that when the death had
occurred in his custody, the appellant is
under an obligation to give a plausible
explanation for the cause of her death in
his statement under Section 313 Cr.P.C.
The mere denial of the prosecution case
coupled with absence of any explanation
were held to be inconsistent with the
innocence of the accused, but consistent
with the hypothesis that the appellant is a
prime accused in the commission of
murder of his wife. In State of U.P. v. Dr.
Ravindra Prakash Mittal AIR 1992 SC
2045 the medical evidence disclosed that
the wife died of strangulation during late
night hours or early morning and her body
was set on fire after sprinkling kerosene.
The defence of the husband was that wife
had committed suicide by burning herself
and that he was not at home at that time.
The letters written by the wife to her
relatives showed that the husband illtreated her and their relations were
strained and further the evidence showed
that both of them were in one room in the
night. It was held that the chain of
circumstances was complete and it was the
husband who committed the murder of his
wife by strangulation and accordingly this
Court reversed the judgment of the High
Court acquitting the accused and convicted
him under Section 302 IPC. In State of
Tamil Nadu v. Rajendran (1999) 8 SCC
679 the wife was found dead in a hut
which had caught fire. The evidence
showed that the accused and his wife were
seen together in the hut at about 9.00 p.m.
and the accused came out in the morning
through the roof when the hut had caught
fire. His explanation was that it was a case
of accidental fire which resulted in the
death of his wife and a daughter. The
medical evidence showed that the wife
died due to asphyxia as a result of
strangulation and not on account of burn
injuries. It was held that there cannot be
any hesitation to come to the conclusion
that it was the accused (husband) who was
the perpetrator of the crime."
 (Emphasis supplied)

29. Coming again to the fact of this
case,
where
the
prosecution
has
successfully proved all the ingredients of
Section 304-B I.P.C. Now a question arise
as to whether the appellant, who was
present at the time of occurrence with
442 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased has succeeded to rebut the
presumption of law, as provided under
Section 113-B of Evidence Act, by
producing
any
cogent
and
reliable
evidence.

30. The appellant-Kamlesh Kumar, in
his statement under Section 313 of the
Code, has specifically stated that he had
given information of the occurrence to the
concerned police station that the deceased
had committed suicide in frustration due to
denial of appellant to carry her Mumbai
and she could not be saved as door of the
room was locked by her. To prove this fact
neither the appellant nor any member of his
family, who was present at place of
occurrence, was examined by him before
the trial Court. Jarmish Khan (D.W.-1),
record keeper of police office Raibareli and
H.C.P.-Sri Ram Sharma (D.W.-3), who
were produced by the appellant, have
proved Ext.-Kha-1 G. D. Report No.30
dated 24.02.1995 at 18:10 p.m. H.C.P.-Sri
Ram Sharma (D.W.-3) has stated that on
24.02.1995 he was posted at Kotwali,
Lalganj, District-Raebareli and at that time
the appellant-kamlesh Kumar had filed a
written information showing that his wife,
Smt. Dhanpati had committed suicide by
setting her on fire. He further stated that he
had entered the contents of the said
information in Ext.-Kha-1 and informed the
Police Inspector-Pritam Singh.

31. From perusal of the Ext.-Kha-1, it
is clear that the appellant-Kamlesh Kumar
had also mentioned in his information that
in the intervening night of the occurrence
the appellant and deceased were sleeping
together on one bed, the deceased had
arisen in the morning but the appellant
continued to sleep. It is further mentioned
that at about 7:00 a.m. appellant's sister saw
the burn smoke, awoke the appellant and
raised alarm. Thereafter he, his sister-Ram
Pyari (co-accused) and co-villagers-Ram
Murti, Nanhe and so many villagers
appeared there and saw that the room
where the deceased was burning, was
locked from inside. It is also mentioned in
the said information that all the persons,
who were present on the spot, had tried to
cut and tore the door but could not succeed
as handle of axe was broken. Thereafter
they pulled down the door by spade and
saw that the deceased had been completely
burnt and died. It is further mentioned in
Ext.-Kha-1 that information was sent to his
in-laws through his uncle.

32. Now the question arises whether
the
aforesaid
explanatory
evidence
produced by the appellant to rebut the
presumption of dowry death, is reliable and
trustworthy.
The
appellant
has
not
produced his uncle through whom he had
sent information to the informant (P.W.-1).
According to Dr. R. B. Verma (P.W.-3) the
deceased was completely burnt but he in
his cross-examination had denied the
presence of any smell of kerosene oil.
Investigating Officer, Rajendra Kumar
Pandey (P.W.-6) who visited the place of
occurrence did not find any inflammable
materials such as Kerosene oil, match box,
dibri etc.