# Smt. Rajola & Ors v. State of U.P - **Citation:** (2022) 6 ILRA 701 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-05-18 - **Case number:** Criminal Appeal No. 3246 of 2012 - **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajola-ors-v-state-of-u-p-48840 - **Pages:** 20 ## Headnote Law - Appeal against conviction - Indian Penal Code, 1860 - Section 302/34 & 498-A - Husband or relative of husband of woman subjecting her to cruelty, Section 304-B - Dowry death, Dowry prohibition Act,1961 - Section 3/4 , The Code of criminal procedure, 1973 - Section 207,313, 702 INDIAN LAW REPORTS ALLAHABAD SERIES Indian Evidence Act, 1872 - Section 106 - Burden of proving fact especially within knowledge , Section 113B - Presumption as to dowry death. Marriage of the deceased with appellant - six years prior to incident - F.I.R. lodged by informant (father of deceased) - Sufficient dowry given in marriage - torture by relative - relation to the demand of Rs. One lac for purchasing a tractor - demand of motorcycle - subjected to harassment - not fulfilling demand - family members arrived at the matrimonial home of his daughter - at about 2 o'clock in the night - found the door of the house closed from outside - opened by uncle of his son-in-law - found daughter lying dead in the room who was set ablaze. (B) Criminal Law - first ingredient of Section 304-B IPC - death of women must have been caused by burns or bodily injury or otherwise than under normal circumstances - evident from statements of P.W.1, P.W.2 & P.W. 3 - reached matrimonial house of deceased at about 2 a.m. - deceased found lying burnt inside the room of the house - inquest report - deceased died of the burn injuries - postmortem - death being Asphyxia due to ante-mortem burn injuries - proved that the death was caused by ante-mortem burn injuries which was otherwise than under normal circumstances .(Para - 39) (C) Criminal Law - Second ingredient of Section 304-B IPC - death must have been occurred within 7 year of the marriage to raise a presumption of dowry death - date of marriage of deceased with appellant - proved as 31.4.2000 - death of the deceased, thus, proved to have been taken place within seven years of her marriage. (Para - 40,44) (D) Criminal Law - Indian Evidence Act, 1872 - Section 113B - Presumption as to dowry death - testimony of prosecution witnesses - proved that unnatural death of deceased caused by burn injuries within seven years of marriage - soon before her death, deceased was subjected to cruelty by her husband and his family members in connection with the demand of dowry - appellant caused dowry death of victim - charge under Sections 304-B IPC proved against the appellants - charges under Section 498-A & Section 4 Dowry Prohibition Act proved.(Para - 45,47,48) (E) Criminal Law - Conviction of appellants under section 302 IPC by trial court - based on hypothesis and contrary to the evidence on record - Taking recourse to the Section 106 of Indian Evidence Act - not found to be justified - trial court committed illegality in convicting the appellants under Section 302 IPC with the aid of Section 106 of the Indian Evidence Act. (Para - 50) HELD:- Charges under Section 304-B, 498-A IPC & Section 4 Dowry Prohibition Act are proved beyond all reasonable doubt, against the appellants. Conviction and sentence awarded by trial court under Section 302 IPC stands modified accordingly. (Para - 51) Criminal Appeals partly allowed. (E-7) List of Cases cited:- ## Text _Characters 0–39,983 of 67,688. This is a partial read: ask again with offset=39983 for what follows._ 6 All. Smt. Rajola & Ors. Vs. State of U.P. 701 such a procedure is followed the right of the accused to prove his innocence would be compromised. Section 216 and 217 Cr.P.C. contains a wholesome procedure encompassing principles of natural justice with the intent that accused is given reasonable opportunity to prove his innocence in a fair criminal trial. 28. In the facts of the case no such procedure consistent with the requirement of section 217 and 218 Cr.P.C. has been followed by the trial court. There is absolutely no whisper in the judgment about compliance of provisions contained in section 216 Cr.P.C. It may be reiterated that the trial court also has not independently formed an opinion that no prejudice would be caused to the appellant in the process. The trial, therefore, is clearly vitiated for non compliance of section 216 Cr.P.C. 29. The plea taken by learned AGA that the matter be remanded to trial court also cannot be accepted for the following reasons:- (i) No evidence exists against the appellant to bring home the charge under section 302 IPC as all witnesses of fact have turned hostile. (ii) The appellant has remained in jail for more than 11 years without remission and we cannot allow him to remain in custody any further, as such a course would be wholly unjust in the facts of the case. 30. In view of the aforesaid deliberations and discussions, this appeal succeeds and is allowed. The judgment and order dated 29.05.2013, passed by the Additional Sessions Judge, Court No.1, Hathras, convicting and sentencing the appellant in Session Trial No.198 of 2012 (State vs. Umesh Yadav) arising out of Case Crime No.498-A, 304-B, 201, 302 IPC & 3⁄4 of Dowry Prohibition Act, Police Station Sikandrarau, District Hathras is hereby set aside. The appellant is acquitted from the charges of offence under section 302 read with 201 IPC and he shall be set at liberty forthwith, if he is not wanted in any other case. ---------- (2022)06ILR A701 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 18.05.2022 BEFORE THE HON'BLE MRS. SUNITA AGARWAL, J. THE HON'BLE SUBHASH CHANDRA SHARMA, J. Criminal Appeal No. 3246 of 2012 Connected with Criminal Appeal No. 3641 of 2012 Smt. Rajola & Ors. ...Appellants Versus State of U.P. ...Respondent Counsel for the Appellants: Sri Noor Mohammad (Junior), Sri Manu Khare, Sri Yogesh Kumar Srivastava, Sri Jitendra Singh Lodhi, Sri Harish K. Yadav, Sri Rajendra Prasad Tiwari, Sri Vinay Kumar Tiwari, Sri Chandra Prakash Pandey, Sri Rajrshi Gupta, Sri Sharad Saran, Sri Dileep Kumar Counsel for the Respondent: G.A., Sri Ali Hasan (A) Criminal Law - Appeal against conviction - Indian Penal Code, 1860 - Section 302/34 & 498-A - Husband or relative of husband of woman subjecting her to cruelty, Section 304-B - Dowry death, Dowry prohibition Act,1961 - Section 3/4 , The Code of criminal procedure, 1973 - Section 207,313, 702 INDIAN LAW REPORTS ALLAHABAD SERIES Indian Evidence Act, 1872 - Section 106 - Burden of proving fact especially within knowledge , Section 113B - Presumption as to dowry death. Marriage of the deceased with appellant - six years prior to incident - F.I.R. lodged by informant (father of deceased) - Sufficient dowry given in marriage - torture by relative - relation to the demand of Rs. One lac for purchasing a tractor - demand of motorcycle - subjected to harassment - not fulfilling demand - family members arrived at the matrimonial home of his daughter - at about 2 o'clock in the night - found the door of the house closed from outside - opened by uncle of his son-in-law - found daughter lying dead in the room who was set ablaze. (B) Criminal Law - first ingredient of Section 304-B IPC - death of women must have been caused by burns or bodily injury or otherwise than under normal circumstances - evident from statements of P.W.1, P.W.2 & P.W. 3 - reached matrimonial house of deceased at about 2 a.m. - deceased found lying burnt inside the room of the house - inquest report - deceased died of the burn injuries - postmortem - death being Asphyxia due to ante-mortem burn injuries - proved that the death was caused by ante-mortem burn injuries which was otherwise than under normal circumstances .(Para - 39) (C) Criminal Law - Second ingredient of Section 304-B IPC - death must have been occurred within 7 year of the marriage to raise a presumption of dowry death - date of marriage of deceased with appellant - proved as 31.4.2000 - death of the deceased, thus, proved to have been taken place within seven years of her marriage. (Para - 40,44) (D) Criminal Law - Indian Evidence Act, 1872 - Section 113B - Presumption as to dowry death - testimony of prosecution witnesses - proved that unnatural death of deceased caused by burn injuries within seven years of marriage - soon before her death, deceased was subjected to cruelty by her husband and his family members in connection with the demand of dowry - appellant caused dowry death of victim - charge under Sections 304-B IPC proved against the appellants - charges under Section 498-A & Section 4 Dowry Prohibition Act proved.(Para - 45,47,48) (E) Criminal Law - Conviction of appellants under section 302 IPC by trial court - based on hypothesis and contrary to the evidence on record - Taking recourse to the Section 106 of Indian Evidence Act - not found to be justified - trial court committed illegality in convicting the appellants under Section 302 IPC with the aid of Section 106 of the Indian Evidence Act. (Para - 50) HELD:- Charges under Section 304-B, 498-A IPC & Section 4 Dowry Prohibition Act are proved beyond all reasonable doubt, against the appellants. Conviction and sentence awarded by trial court under Section 302 IPC stands modified accordingly. (Para - 51) Criminal Appeals partly allowed. (E-7) List of Cases cited:- 1. Pawan Kumar & ors. Vs St. of Har., 1998 (3) SCC 309 2. Prem Kanwar Vs St. of Raj., 2009(1)JT197 3. Hem Chand Vs St. of Har., (1994) 6 SCC 727 4. G.V. Siddaramesh Vs St. of Karn., (2010)3 SCC 152 5. Sunil Dutt Sharma Vs State , (2014) 4 SCC 8 375 6. V.K. Mishra & anr. Vs St. of Uttarakhand , (2015) 9 SCC 588 (Delivered by Hon'ble Subhash Chandra Sharma, J.) 1. These criminal appeals arise from the judgment and order dated 31.07.2012 passed by the Additional District & Sessions Judge, Court No. 3, Jhansi in Sessions Trial No. 133 of 2007 (State Vs. Sunil Kumar Yadav and another), arising out of Crime No. 193 of 2006, under 6 All. Smt. Rajola & Ors. Vs. State of U.P. 703 Section 302 read with Section 34, 498-A IPC & Section 4 Dowry Prohibition Act, Police Station Erach, District Jhansi, whereby the appellants Smt. Rajola, Raj Kumar @ Majhaley, Smt. Ram Dulari @ Uma, Neetu @ Ram Kumar and Sunil Kumar Yadav have been convicted and sentenced under Section 302/34 IPC with life imprisonment and fine of Rs.10,000/- each; in default of payment of fine to undergo additional imprisonment for a period of six months; under Section 498-A IPC with three years imprisonment and fine of Rs.2,000/- each; in default of payment of fine to undergo additional imprisonment for a period of two months and under Section 4 Dowry Prohibition Act with one year imprisonment and fine of Rs.1,000/- each, in default of payment of fine to undergo additional imprisonment for a period of one month. 2. The prosecution case in brief is that, on 01.11.2006 at about 5.10 a.m., an F.I.R. was lodged at the police Station Erach, District Jhansi by the informant Manmohan Singh, the father of the deceased r/o Village Puraini, Police Station Bhoganipur, District Kanpur Dehat by filing a written report stating therein that his daughter Smt. Anita Yadav aged about 26 years was wedded to Sunil Kumar Yadav R/s Village Dikauli, Police Station Erach, District Jhansi six years prior to the incident. Sufficient dowry was given in marriage, but his daughter told him that her husband Sunil Kumar, mother-in-law Smt. Rajola, brother-in-law Raj Kumar @ Majhale, his wife and younger brother-inlaw Neetu aged about 20 years used to torture her in relation to the demand of Rs. One lac for purchasing a tractor. The first informant stated that he helped as much as he could to purchase the tractor. Again, they pressed his daughter to bring a motorcycle from her father and subjected her to harassment for not fulfilling their demand. His daughter informed him about this then he along with other members of his family went to village Dikauli and expressed their inability to pay money for the motorcycle and also asked to bring his daughter with him but they did not see her off. The first informant returned to his village. On 31.10.2006, in the night at about 8 p.m., his daughter phoned and told that the inmates of her sasural were beating her and pleaded him to rescue her. At that information, he along with the other family members arrived at the matrimonial home of his daughter at about 2 o'clock in the night where he found the door of the house closed from outside. He got it opened by Rameshwar, uncle of his son-in-law and there he found that his daughter Anita was lying dead in the room who was set ablaze. On the basis of the written report (Tahreer), the case was registered as Crime No. 193 of 2006 under Sections 498-A, 304-B IPC Section 3⁄4 Dowry Prohibition Act. The detail of the case was entered in the G.D. report No. 6. 3. The investigation of the case was handed over to the circle officer Garautha. 4. The inquest of the deceased Smt. Anita, was conducted by S.I. Lalit Kishor on the same day and the report was prepared by him along with other relevant papers required for the purpose of postmortem. Dead body was sealed and handed over to constable Satendra Kumar and Ram Sewak who brought it to the mortuary C.H.C. Mauranipur, Jhansi. 5. The post-mortem was conducted on 1.11.2006. It is mentioned in the post mortem report that the dead body brought by constable Satendra Kumar and Ram 704 INDIAN LAW REPORTS ALLAHABAD SERIES Sewak was received in a sealed cloth, seal on which tallied with the sample seal. The findings recorded in the post mortem report are as under: External examination: age about 26 years, body of average built female with both upper limb flexed and both lower limb flexed. Body is in pugilistic attitude. Both eyes closed, mouth closed but semi opened & tooth looking between the lips. Ante-mortem injuries: Superficial to deep burn present over the body except both buttocks upper and lower quadrant where line of redness present. Whole body is black in colour except normal area. Hair of scalp, burnt totally except at posterior part of head where hairs were unburnt (choti latak rahi hai). Abdomen burst on upper part right side and from burst appearing loop of small intestine and liver lower part visible, both are blackish in colour. Right elbow joint is burnt where both upper end of the radius @ ulna bone exposed with blackish colour. Left elbow joint is burnt and left whole joint with underlying bone exposed. Thorax: wall & ribs burnt. Pleura congested. Larynx, traccea and bronchisooty black particles present over the congested mucosa. Right & left lungscongested and pericardium-congested. Heart-right side full, left side empty. Abdomen: Wall burnt, peritoneum congested, Cavity only smell and gases present. Buccal Cavity, pharynx & teeth-16/16. Esophagus congested. Stomach contents about 50 ml semi digested food present. Small intestine semi digested food present. Large intestine faecal matter at places. Gall bladder congested. Pancreas congested. Spleen congested. Kidneys congested. Urinary bladder-empty. Generation organs NAD except burnt. Time since death about 18 hours. Cause of death was asphyxia due to antemortem burn. 6. During investigation, wet and dry soil along with burnt ash of clothes was taken into possession and recovery memo was prepared. An invitation card of marriage of the deceased was given by the informant and memo was prepared. After inspection of the place of occurrence, site plan was prepared and statements of witnesses conversant to the facts of the case were recorded. On the basis of the material collected during investigation, prima facie case was found to be made out against the accused under Sections 498-A, 304-B IPC & Section 3⁄4 Dowry Prohibition Act and hence the charge sheet was submitted to the court concerned. 7. Learned Chief Judicial Magistrate took cognizance of the offences and provided copies of the prosecution papers in compliance of Section 207 Cr.P.C. to the accused persons and committed the case to the court of sessions for trial. 8. The trial court after taking into consideration the material on record, framed the charges against the appellants under Sections 498-A, 304-B IPC & Section 4 Dowry Prohibition Act and alternative charge under Section 302/34 IPC. 9. Charges were read-over and explained to the appellants, the accused appellants pleaded not guilty, denied the 6 All. Smt. Rajola & Ors. Vs. State of U.P. 705 charges and demanded trial. Consequently, the case was fixed for prosecution evidence. 10. In support of its case, the prosecution examined P.W.1 Manmohan Singh who is the first informant and father of the deceased, P.W.2 Tulsiram, P.W. 3 Virendra Sigh Yadav both uncles of deceased as witnesses of fact, P.W.4 S.I. Rafiq Khan was Investigating Officer who prepared fard relating to the seized articles, recorded the statements of witnesses and submitted the charge sheet. P.W. 5 constable Ram Jiwan prepared chik F.I.R. on the basis of written report (tahreer) and made entry in the G.D., P.W. 6 Dr. R.P. Verma conducted the post-mortem and prepared the report. P.W. 7 Hammi Lal Verma C.O. investigated the case prior to P.W. 4 Rafiq Khan and prepared site plan and also recorded the statements of witnesses. 11. On conclusion of prosecution evidence, statements of the appellants were recorded under Section 313 Cr.P.C. wherein they had denied all the allegations made against them including the date of marriage and also stated that the deceased committed suicide by setting herself ablaze because she was under depression being issue-less. Her cremation was performed by appellant Sunil Kumar in the presence of her father and uncle. About the invitation card, it was said to be a fabricated document. In addition thereto, the appellant Sunil Kumar further stated that his marriage was solemnized on 10.5.1998 without dowry. In the year 1999, they both became Voters in the gram panchayat. Since 2003, they had been living separately from other family members. The deceased could not concieve and as such she was under depression for about 6-7 months and on 31.10.2006 at about 10 A.M., while the accused Sunil Kumar was out in relation to the canvassing of the election of Dharmendra Rajpoot, he got information from Chatur Singh that his wife had committed suicide by setting herself ablaze. He immediately came back to his house and sent information to the police station through the village chaukidar and also informed his sasural (the informant) from S.T.D. Phone of Chatur Singh. The family and the first informant came there. 12. The dead body was handed over to him after inquest and post mortem and he performed the last rites of the deceased. The appellants Ram Dulari @ Uma and Smt. Rajola stated that they both went to the temple for Aarti at about 8 o'clock where they were informed by the villagers that smoke was coming from their house so they came back and found that Sunil Kumar was trying to open the doors of the room which was bolted from inside. With the help of the Lekhpal, door was opened where Anita was lying burnt and dead. The information was then given to Raj Kumar and Neetu who were in the field. 13. In defence, two witnesswes namely D.W. 1 Parshuram Yadav & D.W. 2 Lachchi Ram were examined. 14. The learned trial court passed the order dated 31.7.2012 for convicting and sentencing the appellants. Hence this appeal. 15. Heard Shri Yogesh Kumar Srivastava and Shri Noor Mohammad, learned Advocates for the appellants and Shri Rupak Chaubey and Ms. Arti Agarwal, learned A.G.As. for the State and perused the record. 16. Learned counsel for the appellants submits that the trial court has erred in 706 INDIAN LAW REPORTS ALLAHABAD SERIES convicting the appellants without considering and appreciating the evidence on record. The prosecution could not prove its case with cogent and reliable evidence. The appellants are innocent and have committed no offence as alleged. There are material contradictions in the statements of prosecution witnesses. The prosecution witnesses are relatives of the deceased. Learned trial court has not considered the fact that the deceased was issue less and was living in distress and committed suicide by setting herself ablaze when the appellants were not present at home. The appellants themselves had informed the parents of the deceased about her death. Initially the parents had no complaint and were satisfied that deceased had committed suicide but later in order to blackmail the appellants, a false case was registered against them. The appellants never subjected the deceased to cruelty in relation to the demand of dowry. It is further submitted that no injury was found on the person of the deceased which gives rise to the inference that deceased had committed suicide by setting herself at fire and the appellants had committed no offence. Lastly, it is submitted that the learned trial court without considering all these facts had convicted the appellants under Section 302 IPC whereas after the investigation, the offence under Sections 498-A, 304-B IPC & Section 3⁄4 Dowry Prohibition Act was found to have been committed. The finding recorded by the learned trial court is based on conjuctures. Learned trial court has misinterpreted Section 106 of Indian Evidence Act to convict the appellants. The judgment in question, thus, pleaded to be erroneous and that the appellants deserve acquittal after allowing the appeals. 17. Learned A.G.A., in rebuttal urged that there is sufficient evidence on record on the basis of which the learned trial court has concluded that the appellants had committed the murder of the deceased inside their house by setting her ablaze. The burden to disclose the facts as to how she had died inside their house was on the appellants because of the said fact being in their special knowledge which can be explained by them only as per Section 106 of Indian Evidence Act. The appellants did not discharge the said burden and, therefore, their conviction is perfectly justified. There is sufficient evidence regarding the demand of dowry and harassment of the deceased in relation thereto by the appellants. Though the fact of death within seven years of marriage was proved by the prosecution but it was not relied by the learned trial court. The appellants were, therefore, convicted and sentenced under Section 302 IPC with the aid of Section 106 of Indian Evidence Act which cannot be said to be against law. The decision of the learned trial court is perfectly sound and the present appeals being devoid of merit are liable to be dismissed. 18. From the submissions made by the learned counsel for the parties, the first and foremost question arises for consideration by this Court is that whether the finding given by the learned trial court convicting the accused/appellants under Section 302 IPC with the aid of Section 106 of Indian Evidence Act and acquitting them under Section 304-B IPC on the basis of evidence on record is correct or not. 19. Before we deal with the contentions raised by the learned counsel for the appellants, it would be convenient to take note of the evidence adduced by the prosecution. 6 All. Smt. Rajola & Ors. Vs. State of U.P. 707 20. The prosecution had examined seven witnesses out of which P.Ws. 1 to 3 are the witnesses of fact. 21. P.W. 1 Manmohan Singh, the father of deceased, the first informant, stated that his daughter Anita was wedded to appellant Sunil Kumar Yadav on 23.4.2000 and that he offered dowry according to his capacity. Afterwards, her husband Sunil Kumar, mother-in-law Rajola, brother-in-law Raj Kumar @ Majhaley, his wife Smt. Ram Dulari @ Uma and younger brother-in-law Neetu @ Ram Kumar made demand of Rs. One lac for purchasing tractor. At this, he helped them as much as he could. They, again demanded for the motorcycle and when the said demand was not fulfilled, they subjected his daughter to harassment. His daughter informed him by telephone and also when she came to his house knowing that he along with the members of his family went to the village of her husband and expressed his inability to fulfill the demand and also requested to send his daughter with him but the in-laws of the deceased did not see her off, so he came back to his house. On 30.10.2006, his daughter informed him on telephone that she was being beaten because of the demand of motorcycle, on this the first informant assured her daughter that he would reach there after few days. On 31.10.2006 at about 8 o'clock, his daughter again called on telephone and said that her in-laws would kill her and told him to come soon. The first informant could reach to the matrimonial house of her daughter at the village Dikauli at about 2 o'clock in the night (2 a.m.) where he found that the door of the house was bolted from outside. He called Rameshwar, the uncle of appellant Sunil Kumar Yadav who was living nearby and got the door opened. His daughter was lying inside the room in the burnt state the inmates of the house were not present. P.W. 1 then went to the police station Erach with a written report on the basis of which the case was registered. P.W.1 proved the written report as Ext. Ka-1 being in his writing. This witness was subjected to gruel cross-examination on the part of the defence but he had asserted the facts as narrated during the examination-in-chief, relating to the demand of dowry and the resultant harassment by the husband and inlaws of her daughter, the deceased. 22. P.W. 2 Tulsiram, is the uncle of the deceased, he also stated that the marriage of deceased was solemnized with Sunil Kumar Yadav on 23.4.2000. Adequate dowry in the shape of household articles such as utensils, Almirah, single bed and several other items as also gold ornaments, clothes were given. After marriage when his niece came back to her village Puraini, she told him and other members of her family that her husband Sunil Kumar Yadav, mother-in-law Rajola, brother-in-law Raj Kumar @ Majhaley, his wife Smt. Ram Dulari @ Uma and younger brother-in-law Neetu @ Ram Kumar made a demand of Rs. One lac for the tractor and also subjected her to cruelty. They also threatened her to leave her matrimonial house in case their demands were not fulfilled. P.W. 2 intervened and tried to help them as much as he could but the family members and husband of the deceased did not give up and again made a demand for motorcycle. Knowing that he along with his brother Manmohan Singh and Sahdev Singh went to Dhikauli where the appellants raised demand for motorcycle and told that if they wanted Anita to live in their house, their demands 708 INDIAN LAW REPORTS ALLAHABAD SERIES had to be fulfilled. P.W. 2 stated that he did not send her with them so they came back. On 31.10.2006 at about 8 o'clock, Anita told on the mobile that she was being beaten by her hsuband and in-laws and asked them to come soon otherwise she would be killed. On the said information, he along with his brother (P.W.1) and other members of his family went to the village Dhikauli in the night at about 2 o'clock (2 a.m.) where the door of the matrimonial house of the deceased was bolted from outside. They called Rameshwar, uncle of appellant Sunil Kumar who was living nearby and got the door opened, where they saw Anita lying inside the room in the burnt state. No inmate of the house was present inside. The report of the offence was lodged by his brother Manmohan Singh at the police station. The inquest of deceased Anita was conducted in his presence and he had identified his signature on the inquest report, as Ext. Ka-2. This witness (P.W.2) has also been subjected to gruel cross-examination on the part of the learned counsel for appellants but he firmly asserted the facts relating to the date of marriage, demand of dowry and harassment of the deceased at the hands of her husand and in-law as narrated by him during the examination-inchief. 23. P.W.3 Dr. Virendra Singh Yadav, another uncle of deceased Anita, who has narrated that on 23.4.2000 the marriage of Anita was solemnized with Sunil Kumar as per Hindu rituals. Anita studied up to class 5th. In the marriage adequate dowry including household articles, ornaments, clothes etc. and Rs. 55,000/- (fifty five thousand) in cash, were given. After marriage when Anita came back from her sasural, she told before him and other members of his family that her husband Sunil Kumar Yadav, mother-in-law Rajola, brother-in-law Raj Kumar @ Majhaley, his wife Smt. Ram Dulari @ Uma and younger brother-in-law Neetu @ Ram Kumar were making demand for Rs. One lac to purchase a tractor and subjected her to cruelty. On this, P.W.3 along with the other members went to the sasural of Anita and reconciled the matter with the members of her family and also made help (financial) as far as possible. But they made a demand for motorcycle which fact was told by Anita. Knowing that, he along with his brothers Manmohan Singh, Tulsi and nephew Sahdev Singh went to the matrimonial house of Anita at village Dhakauli, where her husband and family members demanded money for motorcycle and said that they would keep Anita in their house, only when their demand of motorcycle was fulfilled. P.W.3 and other members of the family then requested to see her off with them but they did not send her. On 31.10.2006 at about 8 p.m., Anita called through telephone that she was being beaten by in-laws and requested that they should reach early to save her life otherwise she would be killed. P.W. 3 along with his brother (P.W.1) and other members of the family reached the village Dhakauli at about (2 a.m.) 2 o'clock in the night. The door of the matrimonial house of Anita was bolted from outside. It was got opened by Rameshwar, uncle of appellant Sunil Kumar living in the neighbourhood. When he entered the house, he found his niece Anita lying inside the room in burnt state and no one else was present inside. The report of this incident was lodged by his brother Manmohan Singh (P.W.1) on the same day at the police station Erach. The inquest of the body of deceased Anita was conducted in the presence of Nayab Tehshildar, Garautha and P.W.3 also put his signature on the inquest report. 6 All. Smt. Rajola & Ors. Vs. State of U.P. 709 Invitation card of marriage of the deceased Anita was also seized by the Circle Officer provided by his brother in his presence which he proved as Material Ext. 1. This witness has also been subjected to lengthy cross-examination from the side of the appellants but he had reiterated firmly the facts relating to the date of marriage, demand of dowry and harassment of the deceased at the hands of her matrimonial family including her husband. 24. P.W.4 Rafiq Khan is the Investigating Officer who proved the investigation of the case and also the fard (recovery memo) of seizure of the invitation card as Ext. Ka-3. He has also submitted the charge sheet proved as Ext. Ka-4. 25. P.W. 5 constable Ram Jiwan who was posted at the police station concerned on the day of the incident proved the chik F.I.R. as Ext. Ka-5, in his hand writing and signature, and stated that he registered the case on the basis of the written report given by the informant Manhohan Singh and also entered its detail in the G.D. report no. 6. P.W. 5 also proved the carbon copy of the G.D. by comparing with the original as Ext. Ka-6. 26. P.W. 6 Dr. R.P. Verma conducted the postmortem of the body of deceased Anita. He proved the postmortem report being in his hand writing and signature as Ext. Ka-7. 27. P.W. 7 Hammilal Verma was the previous Investigating Officer, who got prepared the inquest report and other related papers by S.S.I. Lalit Kishor which he proved as Ext. Ka-2 and Ext. Ka-9 to Ka-14. P.W.7 also inspected the place of occurrence and prepared the site plan which he proved as Ext. Ka-8. 28. Before we proceed to evaluate the evidence on record led by the prosecution in support of the charges framed against the appellants, it is necessary to examine the law relating to 'dowry-death', ''cruelty' and ''dowry demand'. 29. Section 304B and Section 498A I.P.C. is as under:- "304B. Dowry death.-(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 sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 30. "498A. 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 710 INDIAN LAW REPORTS ALLAHABAD SERIES 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 willful 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." 31. The term "dowry" has been defined in Section 2 of the Dowry Prohibition Act, 1961 (in short 'Dowry Act') as under :- "Section 2. Definition of 'dowry'- In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly." (a) by one party to a marriage to the other party of the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mehr in the case of person whom the Muslim Personal Law (Shariat) applies. Explanation I- For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this Section unless they are made as consideration of the marriage of the said parties. Explanation II- The expression 'valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1861)." 32. Explanation to Section 304B refers to dowry" as having the same meaning as in Section 2 of the Act'. The question is "what is the periphery of the dowry as defined therein? The argument is that there must be an agreement at the time of the marriage in view of the words "agreed to be given" occurring therein, and in the absence of any such evidence it would not constitute ''dowry'. It is noticeable that this definition with the amendment includes not only the period before and at the time of marriage but also the period subsequent to the marriage. 33. This position was clarified in Pawan Kumar and others vs. State of Haryana, 1998 (3) SCC 309:- "The offence alleged against the accused is under Section 304B I.P.C. Which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved; hardly any offenders would come under the clutches of law. When Section 304B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the 6 All. Smt. Rajola & Ors. Vs. State of U.P. 711 definition of "dowry" under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence that could be either direct on indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the accused seeks, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4, which deals with a penalty for demanding dowry under the Act and the I.P.C. makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry." 34. The Apex Court has highlighted all the aspects of law relating to 'dowry demand' and 'dowry death' in the case Prem Kanwar Vs. State of Rajasthan, 2009(1)JT197. 35. Section 113B of the Evidence Act is also relevant for the purpose of the case at hand. Both Sections 304B I.P.C. And Section 113B of the Evidence Act were inserted, as noted earlier, in view of the dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as under:- "113B: 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 persons has caused the dowry death. Explanation- For the purposes of this Section' dowry death' shall has the same meaning as in Section 304B of the Indian Penal Code (45 of 1976). 36. The necessity for insertion of the above two provisions has been aptly analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing laws in securing evidence to prove dowry related death, the legislature thought it wise to insert a provision relating to presumption of dowry death on the proof of certain essentials. It is in this background presumptive Section 113B in the Evidence Act had been inserted. As per the definition of 'Dowry death; in Section 304B I.P.C., and the wordings in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst other, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment for or in connection with the demand of dowry".Presumption under Section 113B is a presumption by law. On proof of the essentials mentioned therein, the Court would raise a presumption that the accused persons caused the dowry death. The said presumption shall be raised on the proof of the following essentials: (1) The question before the Court must be whether the accused committed the 712 INDIAN LAW REPORTS ALLAHABAD SERIES 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 304B I.P.C. (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. 37. A conjoint reading of Section 113B of the Evidence Act and Section 304B I.P.C. shows that there must be material to show that soon before the death, the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is relevant in a case where Section 113B of the Evidence Act and Section 304B I.P.C are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. 38. It has been held that 'Soon before' is a relative term and it would depend upon the circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of ''soon before' the occurrence. It was observed in a catena of decision of the Apex Court that it would be hazardous to indicate any fixed period, which 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 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304B I.P.C. and Section 113B of the Evidence Act is to be examined with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to the expression 'soon before' used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that the Court may presume that a man who is in the possession of goods 'soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of a period which can come within the term 'soon before' is to be made by the Courts depending upon the facts and circumstances of each case. Suffice it to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death of the victim. There must be existence of a proximate and live-link between the effects of cruelty based on dowry demand and the death of the victim. If 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. 39. In the instant case, so far as the first ingredient of Section 304-B IPC is concerned that the death of women must have been caused by burns or bodily injury or otherwise than under normal circumstances, from the statements of P.W.1, P.W.2 & P.W. 3 it is evident that when they had reached the matrimonial house of the deceased at about 2 a.m. she was found lying burnt inside the room of the house. Ext.