# Shashi Kant v. State of U.P

- **Citation:** (2020) 12 ILRA 322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-08
- **Case number:** Criminal Appeal No. 317 of 1998
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashi-kant-v-state-of-u-p-45576
- **Pages:** 15

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 498-A, 304-B - Dowry Prohibition
Act,1961 - Section 3/4 - Criminal Appeal has
been filed against conviction U/s 498-A, 304-B
I.P.C. and 3/4 D.P. Act

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

Criminal Law - Indian Penal Code,1860 -
Section 304-B- Evidence Act ,1872 - Section
113-B- The term "soon before death" used
in-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. (Para 20)

Delay in lodging the F.I.R. - depends upon
facts and circumstances of each case- such
delay is natural and reasonable, it cannot be
treated fatal to the prosecution story (Para 34)

Order passed by the learned Trial Court is liable
to be affirmed. (Para 44)

Appeal dismissed. (E-2)

List of Cases cited: -

## Text

_Characters 0–39,838 of 50,712. This is a partial read: ask again with offset=39838 for what follows._

322 INDIAN LAW REPORTS ALLAHABAD SERIES

57. Let a copy of this judgment along
with lower Court record be sent to the
concerned trial Court, Barabanki for
necessary information and compliance.

58. A compliance report be sent to
this Court within two months.
----------
(2020)12ILR A322
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.12.2020

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 317 of 1998

Shashi Kant ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
M. Iqbal, Sultan Hasan Ibrahim

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code,1860 -
Sections 498-A, 304-B - Dowry Prohibition
Act,1961 - Section 3/4 - Criminal Appeal has
been filed against conviction U/s 498-A, 304-B
I.P.C. and 3/4 D.P. Act

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

Criminal Law - Indian Penal Code,1860 -
Section 304-B- Evidence Act ,1872 - Section
113-B- The term "soon before death" used
in-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. (Para 20)

Delay in lodging the F.I.R. - depends upon
facts and circumstances of each case- such
delay is natural and reasonable, it cannot be
treated fatal to the prosecution story (Para 34)

Order passed by the learned Trial Court is liable
to be affirmed. (Para 44)

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

8. Tara Singh & ors. Vs St.of Punj., AIR 1991 SC
63

9. Naresh Kumar Vs St. of Har. (2015) 1 SCC 797

10. St. of M.P.h 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
18.5.1998, passed by Sessions Judge,
Raebareli in S.T. No. 105 of 1995 arising
out of Case Crime No. 23 of 1994, Police
Station (in short 'P.S.') Mill Area, District
Raebareli, whereby the appellant-Shashi
Kant (hereinafter referred to as 'appellant')
has been convicted and sentenced for seven
years rigorous imprisonment for offence
12 All. Shashi Kant Vs. State of U.P.
323
U/s 304-B I.P.C.; for three years rigorous
imprisonment for offence U/s 498-A I.P.C.
and for one year rigorous imprisonment for
offence U/s 3/4 Dowry Prohibition Act
(hereinafter referred to as 'D.P. Act'). All
the sentences have been directed to run
concurrently.

2. The prosecution story, in brief, is
that Smt. Mamta Sharma (hereinafter
referred to as 'deceased'), daughter of
Balram (PW-2) was married with the
appellant on 2.5.1993. The appellant, his
mother Ram Bai (since acquitted), his
father Lodheshwar (since acquitted) and his
uncle Baleshwar (since acquitted) used to
demand a scooter as dowry and were
causing cruelty and harassment with
deceased for non-fulfilling the demand of
dowry. On 2.2.1994, deceased-Mamta got
admitted in District Hospital, Raebareli
with complain of consumption of poison
and low general condition where she died
on same day at 7:25 p.m. The death
information report was sent from the
District Hospital Raebareli to P.S. Kotwali,
Raebareli. S.I. Sri Zafrul Haq (PW-6),
conducted
the
inquest
proceedings,
prepared inquest report (Ex.Ka.5) and
relevant police papers Ex.Ka.6 to Ex.Ka.9,
sealed the dead body of the deceased and
sent it for postmortem examination.

3. Dr. R.S. Agarwal (PW-3) and Dr.
S.L. Sharma had conducted the postmortem
examination of deceased on 3.02.1994 at
3:45 p.m. and prepared the postmortem
report (Ex.Ka.2). According to him (PW3), death of deceased could have occurred
on 02.02.1994 at 7:25 p.m; the rigor mortis
was present on all the four limbs; no
external injury was found on the dead body
and cause of death was not clear, as such,
viscera of the deceased was preserved and
sent for chemical examination.

4. Krishna Murari (PW-1), real
brother of the deceased, filed a written
information
(Ex.Ka.1)
before
the
Superintendent
of
Police,
Raebareli,
alleging that the deceased, aged about 18
years, was married to the appellant on
2.5.1993 and in her marriage, sufficient
dowry was given to the appellant who was
doing tailoring job at Raebareli, but he was
not satisfied with the said dowry and was
complaining with his (PW-1) sister that her
(deceased's) parents had failed to give a
scooter in dowry. It is further stated in the
said written report that due to not giving
the scooter in dowry, the appellant, along
with Lodheshwar (father-in-law of the
deceased) and Baleshwar (cousin father-inlaw of the deceased) were annoyed. It is
further submitted that on the eve of
Makarsankranti festival (Khichdi), he (PW1) had gone to her sister's matrimonial
house to take off her (vidai) where the
appellant, his parents and uncle had again
put a demand for a scooter and some cash
as a condition for sending her. It is further
stated that due to non-fulfillment of dowry,
the appellant and other co-accused (since
acquitted) used to torture and harass the
deceased but he (PW-1), pacifying anyhow
the deceased, returned to his house. It is
further stated that on 7.2.1994, his relative
Ram Shankar informed him that his sister
had died whereupon, he rushed from his
village. It is further stated that his sister
was killed by her husband (appellant), her
mother-in-law, her father-in-law and cousin
father-in-law for want of dowry, by
administering poison to her and on
7.2.1994, he had gone to P.S. Mill Area,
but no action was taken.

5. On the said information (Ex.Ka.1),
Station House Officer, P.S. Mill Area was
directed by the Superintendent of Police,
Raebareli to lodge the first information
324 INDIAN LAW REPORTS ALLAHABAD SERIES
report and to investigate the matter. In
compliance of said direction, the said
information was entered in Police General
Diary (Ex.Ka.4) on 9.2.2004, Chik Report
(Ex.Ka.3) was prepared by Head Constable
Surendra Prasad Jaiswal (PW-4) and a
criminal case was registered under Section
498-A, 304-B I.P.C. and Section 3/4
Dowry
Prohibition
Act
against
the
appellant
and
other
co-accused.
Investigation of the case was handed over
to Dy.S.P. Lalit Kumar Singh (PW-5) who
perused the inquest report and other
relevant
police
papers
(Ex.Ka.5
to
Ex.Ka.9), visited the place of occurrence,
prepared site plan (Ex.Ka.10), recorded the
statement of witnesses and filed a chargesheet against co-accused Lodheshwar,
Baleshwar and Smt. Ram Bai. Later on, the
investigation of the case was transferred to
Dy.S.P. Mrigendra Singh (PW-8) who filed
a charge-sheet (Ex.Ka.13), against the
appellant
Shashi
Kant,
before
the
concerned
Magistrate
who
took
the
cognizance of offence and since the offence
was exclusively triable by Court of Session,
after providing the copies of necessary
police papers as required under Section 207
of the Code, committed the case for trial to
court of Session, Raebareli.

6. Charges were framed against the
appellant along with co-accused for the
offence U/s 304 B, 498-A I.P.C. and
Section 3/4 Dowry Prohibition Act.

7. The appellant and other co-accused
denied the said charges and claimed for
trial.

8. The prosecution in order to prove
its case examined Krishna Murari (PW1/informant), Balram (PW-2), Dr. R.S.
Agarwal (PW-3), Head Constable Surendra
Prasad Jaiswal (PW-4), Dy.S.P. Lalit
Kumar Singh (PW-5), S.I. Sri Zafrul Haq
(PW-6), Vinod Kumar Sharma, Scientist
Forensic Science Laboratory, Lucknow
(PW-7) and Dy.S.P. Mrigendra Singh (PW8). PW-1 and PW-2 are witnesses of fact,
whereas,
rest
witnesses
are
formal
witnesses.

9. Trial Court, in addition to above
witnesses
also
examined
C.W-1
Badharauddin,
Ward
Boy,
District
Hospital, Raebareli.

10. Upon conclusion of prosecution
evidence, the statement of appellant and
other co-accused were recorded under
Section 313 of the Code, to explain the
prosecution
evidence,
wherein,
the
appellant and other co-accused denied the
prosecution evidence and claimed that they
had been falsely implicated. Co-accused
Lodheshwar further stated that the dead
body of the deceased was given in his
custody with the consent of father of the
deceased and there was no dispute
regarding death of deceased but the brother
of the deceased annoyed due to dispute,
arose for returning the jewelry of deceased
and
lodged
the
F.I.R.
Co-accused
Baleshwar further stated that he was
residing
separately
from
co-accused
Lodheshwar and he had no concern with
him. The appellant and other co-accused
Smt. Ram Bai did not state anything more
except denial to the prosecution evidence.

11. Upon conclusion of the trial, the
learned trial Court acquitted the co-accused
Lodheshwar, Ram Bai and Baleshwar but
convicted and sentenced the appellant-Shashi
Kant by the impugned judgment and order.

12. Aggrieved by the said judgment
and order, this criminal appeal has been
preferred.
12 All. Shashi Kant Vs. State of U.P.
325

13. Heard Sri S.H. Ibrahim, learned
counsel for the appellant, Sri Tilakraj
Singh, learned A.G.A. assisted by Sri Hari
Kant, brief holder for the State.

14. 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 due
to mistake, the deceased, had sou-motto
consumed
some
poisonous
substance/pesticides and died in the night
of 02.02.1994. Learned counsel further
submitted that in order to save the life of
the deceased, the appellant took her away
to District Hospital but she could not be
saved
during
the
treatment.
Learned
counsel
further
submitted
that
the
information was given by the appellant to
the father of the deceased who also
participated in her cremation. Learned
counsel further submitted that after seven
days of the death of deceased, a false
report, in order to grab the money, was
lodged by Krishna Murari (PW-1), brother
of the deceased. Learned counsel further
submitted that no plausible explanation has
been given by the prosecution for such
huge delay in lodging the F.I.R. Learned
counsel
further
submitted
that
the
prosecution has also failed to prove the
factum of demand of dowry as well as
harassment soon before the death of the
deceased.
Learned
counsel
further
submitted that the trial Court without
considering the material and evidence
available on record had, in cursory and
illegal manner, passed the impugned
judgment and order, and convicted the
appellant which is against the settled
provision of law and is liable to be set
aside.

15. Per-contra learned A.G.A.,
vehemently opposing the submission made
by learned counsel for the appellant, has
submitted that admittedly the deceased had
administered poisonous substance in the
house of the appellant and died within
seven years of her marriage. Learned
A.G.A. further submitted that harassment
and torture was caused to her, soon before
her death for demand of dowry. Learned
A.G.A. further submitted that delay in
lodging the F.I.R. has been properly
explained by the prosecution and no
explanatory evidence, to rebut the statutory
presumption of Section 113-B of Evidence
Act has been produced by the appellant.
Learned A.G.A. further submitted that the
deceased had died within one year of her
marriage but no evidence has been
produced by the appellant regarding the
manner and cause of death of the deceased.
Learned A.G.A. further submitted that the
impugned judgment and order has been
passed by the learned trial Court in view of
the settled provision of law and no
interference is required at this stage.

16. I have considered the rival
submission made by the learned counsel for
the parties and peruse the record.

17. 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
326 INDIAN LAW REPORTS ALLAHABAD SERIES
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.--
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."

18. The above provision, related with
dowry death, clearly shows that if the death
of any woman 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 or in connection
with any demand for dowry, the Court shall
presume that such accused had caused the
dowry death.

19. Admittedly, the appellant is the
husband of deceased-Mamta who had died
within one year of her marriage. This fact
has been admitted by the appellant in his
12 All. Shashi Kant Vs. State of U.P.
327
statement under Section 313 of the Code.
Thus, it has only to be seen whether any
cruelty or harassment has been caused to
the deceased soon before her death due to
demand of dowry or not.

20. 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.

21. 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
328 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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."

22. 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
12 All. Shashi Kant Vs. State of U.P.
329
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 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
330 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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)

23. Krishna Murari (PW-1) brother of
the deceased, while stating that his sister
was married with the appellant on 2.5.1993,
has also stated that at the time of marriage,
there was demand of scooter by the
appellant and other accused person which
could not be fulfilled by him. He further
stated that after one month of her marriage,
his sister came back and complained that
due to non-fulfillment of dowry, the
appellant and other accused person were
causing harassment and torture with her.
He further stated that after gauna, his sister
came back and told him that the appellant
and other accused were demanding a
scooter and some money but he could not
fulfill their demand due to his poor
economic condition. He further stated that
after her gauna, he went to take off
(vidayee) his sister at Navratri and she
again complained that their in-laws were
harassing and torturing her for scooter and
money. He further stated that just before 15
days to death of deceased Mamta Sharma,
the appellant Shashi Kant had come to his
(PW-1) house to take the deceased back
and also asked for a scooter but he (PW-1)
said that he could not fulfill the demand,
thereupon he (appellant) got annoyed and
took the deceased back. He further stated
that on 3.2.1994, a person came on
motorcycle and told him that his sister was
ill and admitted in a hospital. Thereafter,
his father went along with that person and
when he returned he (PW-1) was told that
deceased
was
caused
to
death
by
administering the poison.

24. Balram (PW-2), father of the
deceased, has also stated that deceased was
married with the appellant in the year 1993
and after her marriage, the appellant and
other co-accused were demanding a scooter
as a dowry. This witness further stated that
for non-fulfillment of demand of scooter
and money, the appellant and other accused
person used to beat, torture and harass the
deceased. He further stated that after 15-20
days of death of deceased, he was informed
by an unknown person and upon that
information he had gone to postmortem
house where he became very aggrieved. He
further stated that people, present there, had
12 All. Shashi Kant Vs. State of U.P.
331
forcefully received his signature on a plain
paper. He further stated that the said people
were
saying
that
the
deceased
had
administered poison and died. He further
stated that he had learnt that Lodheshwar (coaccused) and other person were approaching
the senior officer. He further stated that he
was also present at the time of cremation and
returned at 12:00 a.m. in the night.

25. Thus, in view of the statement of
Krishna Murari (PW-1) and Balram (PW-2)
it is clear that the deceased was taken back
by appellant to his house just 15 days
before her death and the appellant was
demanding a scooter and money as a dowry
from the deceased, her brother (PW-1) and
father (PW-2) and due to its nonfulfillment, the appellant and other accused
person were causing harassment and torture
the deceased soon before her death.

26. At this juncture it is also pertinent
to note that in most of the cases the death
of married woman for want of dowry 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.

27. In Trimukh Maroti Kirkan vs.
State of Maharashtra 2006 (10) SCC 681
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.
332 INDIAN LAW REPORTS ALLAHABAD SERIES
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)

28. Coming again to the facts of this
case,
according
to
the
prosecution
evidence, at the time of her death, the
deceased was with the appellant in her
matrimonial house. According to Dr. R.S.
Agarwal (PW-3), the cause of death of
deceased was not known and her viscera
was preserved for examination.

29. Vinod Kumar Sharma (PW-7),
who has prepared Viscera Examination
Report (Ex.Ka.12), has stated that the said
viscera was related with Crime No.
23/1994, U/s 498-A, 304B I.P.C., P.S. Mill
Area (State vs. Shashi Kant and others) and
after examination of viscera, a poisonous
substance i.e. Aluminum Phosphide was
found in the said viscera. Thus, it is clear
that the death of appellant was unnatural
and
caused
by
administration
of
a
poisonous substance.

30. The prosecution has successfully
proved all the ingredients of Section 304-B
and Section 498-A I.P.C. as well as Section
4 of Dowry Prohibition Act. Now a
question arise as to whether the appellant,
who was present at the time of occurrence
with 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.

31. The appellant-Shashi Kant in his
statement under Section 313 of the Code
has denied the prosecution story, but he did
not state any thing more as to why he has
been falsely implicated. He has stated that
the prosecution witnesses have given
statement against him due to enmity and he
did not want to lead any explanation or
evidence in his defence. The appellant has
not produced any defence evidence to rebut
the presumption under Section 113-B of
Evidence Act.

32. It is also pertinent to mention at
this juncture that the poisonous substance,
aluminium phosphide which was found in
viscera report of the deceased is not usually
available and kept in the house by any
person.
From
perusal
of
site
plan
(Ex.Ka.10), prepared by the Investigating
Officer, Dy.S.P. Lalit Kumar Singh (PW5), it transpires that the said occurrence was
caused inside the house of appellant and the
appellant was residing there as tenant of
one Raghunath Prasad Srivastava. Krishna
12 All. Shashi Kant Vs. State of U.P.
333
Murari (PW-1) in his cross examination has
stated that the appellant was permanent
resident of village Hari Kusum Khera, P.S.
Sareni, District Raebareli and were residing
since 15-20 years in Raebareli city. He has
further stated that co-accused Baleshwar was
residing in Balapur (Raebareli) in a tenanted
house and thereafter was residing in his own
house. Thus, it is clear that appellant and his
family member were not dealing with the
business of such poisonous substance which
was administered to the deceased. Further,
they were also not doing the agricultural
work, wherein, such type of pesticide is used.
The deceased was a young lady, belonging to
rural background, aged about 18 years at the
time of occurrence and was caused to death
within one year of her marriage and is not
supported that she would go outside of her
house in unknown new city to manage such
poisonous substance. In such a situation, it
becomes the bounden duty of the appellant to
produce
the
evidence
that
in
what
circumstances, such poisonous substance was
administered to the deceased inside his house.

33. In addition to above, neither the
appellant Shashi Kant who is husband of the
deceased nor any other co-accused who have
been acquitted by the trial Court, had stated
that how and when deceased was administered
poisonous substance and in what condition
and by whom the deceased was carried to the
District Hospital for treatment. Non-disclosure
of such important facts is fatal to the
innocence of the appellant. Thus, in the light
of law laid down by the Hon'ble Supreme
Court in Trimukh Maroti Kirkan (supra)
and failure to produce any evidence in defence
by the appellant to rebut the statutory
presumption of Section 113-B of the Evidence
Act, further strengthen the prosecution case.

34. So far as the submission of
learned counsel for the appellant that the
F.I.R. was lodged by delay of seven days
without any explanation, is concerned,
Ex.Ka.1 shows that this written information
was given to the Superintendent of Police,
Raebareli which itself shows that the
information given by Krishna Murari (PW1) was not taken into consideration by the
police of concerned police station. Further
it has been specifically mentioned in
Ex.Ka.1 that on 7.02.1994, the informant
had approached P.S. Mill Area but no
action was taken.