Criminal Appeal No.350 of 2003

5th August, 2004

Petitioner Counsel: Mr. FIRDOS MIRZA
Respondent Counsel: Mr. MANDPE

Cases Cited:
State of Maharashtra Vs. Tukaram Nivrati Mane, 2004 ALL MR (Cri) 1220 [Para 9,26]
Smt. Vandana w/o. Shridhar Pise Vs. Shridhar Kisan Pise, 2004 ALL MR (Cri) 452 [Para 9,27]
Girdhar Shankar Tawade Vs. State of Maharashtra, 2002 ALL MR (Cri) 1669 (S.C.)=AIR 2002 SC 2078 [Para 9,29]
Shamrao s/o. Dadarao Jadhav Vs. State of Maharashtra, 2004 ALL MR (Cri) 1787 [Para 9,30]
Kans Raj Vs. State of Punjab, 2000 ALL MR (Cri) 1180 (S.C.)=2000 Cri.L.J. 2993 [Para 10,16]
Satvir Singh Vs. State of Punjab, 2002 ALL MR (Cri) 194 (S.C.)=2001 Cri.L.J. 4625 [Para 10,19]
Kaliyaperumal Vs. State of Tamil Nadu, 2003 ALL MR (Cri) 2398 (S.C.)=2003 Cri.L.J. 4321 [Para 10,22,39]
Savalram Vs. State of Maharashtra, 2003 ALL MR (Cri) 1343=2003 Cri.L.J. 2831 [Para 10,24]
Hira Lal Vs. State (Govt. of N.C.T.) Delhi, 2003 ALL MR (Cri) 1784 (S.C.)=2003 Cri.L.J. 3711 [Para 10,25]

JUDGMENT

JUDGMENT :- This appeal is against the order and judgment dt.19-5-2003 passed by the Additional Sessions Judge, Kelapur in Session Trial No.127 of 2002(Old No.132 of 1998), whereunder the appellants were convicted of the offences u/ss.498-A, 306 and 304-B r/w.34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- each in default to further undergo rigorous imprisonment for three months for the offence punishable u/s.498-A r/w.Section 34 of the Indian Penal Code; to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- each in default to undergo further rigorous imprisonment for three months for the offence punishable u/s.306 r/w. section 34 of the Indian Penal Code and to undergo rigonrous imprisonment for seven years and to pay a fine of Rs.1,000/- each in default to undergo further rigorous imprisonment for three months.

2. The prosecution against the appellants arises out of suicidal death committed by victim Savita on the night of 22-6-1998 when she was living in her matrimonial home with her husband appellant Sharad and parents-in-law-appellants Champatrao and Anusayabai. She suffered 100% burns. First she was brought to the Rural Hospital, Ralegaon and then, she was shifted to the Main Hospital, Yavatmal where she was admitted at 10' clock. However, she succumbed to the burn injuries in the early hours of 23-6-1998, at about 1.45 A.M. It is admitted that Savita was married with appellant Sharad about 2 ½ years prior to 22-6-1998. It is the case of prosecution that, at the time of marriage, father of victim was to give an amount of Rs.9,000/- as a dowry. However, he gave an amount of Rs.4,000/- only to the father of appellant Sharad and he assured to pay balance amount of Rs.5,000/- after selling his hours. Since the house could not be sold and victim's father came to be afflicted of serious ill-ness, balance amount of Rs.5,000/- of dowry could not be paid. According to prosecution, during the span of 2½ years after marriage, there was continuous demand of balance amounts of dowry for which there was harassment to victim Savita. Whenever, Savita used to visit her parental house, she used to tell about demand of balance amount of dowry by the appellants and consequent harassment to her by them for non-payment of dowry amount. It is admitted that Savita, accompanied by her husband, visited her parental house just two days prior to the incident to see her ailing father and that she had stayed for a day with her father and while reminding her father of demand of remaining amount of dowry, she told that if the amount is not paid, she would not remain alive. Victim Savita and her husband left for Ralegaon at 2.00 P.M. on Monday. As per the prosecution case, on the very day after having reached in the evening, at night Savita committed suicide by burning herself on pouring kerosene on her person in the house. It was on the next day, early in the morning that Dhanraj Tatewar (P.W.1) - brother of Savita was informed that Savita was burnt and she was admitted in the Government hospital. When Dhanraj, accompanied by his uncle Pundalik Tatewar (P.W.2), reached to the house of appellants at Ralegaon, they came to know that Savita committed suicide and she died of burn injuries suffered. Therefore, Dhanraj, on 24-6-1998, went to the Police Station, Ralegaon (Tahsil) and lodged complaint (Exh.40), on the basis of which Police Station Officer Aslam Khan (P.W.6) prepared First Information Report (Exh.41) and registered offence against the appellants.

3. Police Station Officer Aslam Khan (P.W.6) visited the place of occurrence and prepared spot panchanama vide Exh.47. At that time, the articles found at the place of occurrence including the red-pink coloured saree, orange coloured blouse belonging to victim Savita having smell of kerosene came to be seized under seizure memo (Exh.48). When spot panchanama (Exh.47) was drawn, it was noticed that the floor was emitting smell of rock oil and burnt pieces were found lying near the cot, as also the clothes of the victim including her saree and blouse were smelling of kerosene. Dead body of the victim was sent for concluding post mortem and the Medical Officer conducted autopsy on the dead body and prepared post mortem report (Exh.26). It is found that death of the victim had occurred on account of sustaining 100% burns. The appellants were arrested. After completing investigation, charge-sheet was filed against the appellants in the Court of the Judicial Magistrate, who, in turn, committed the case to the Court of Sessions at Yavatmal, from where it was transferred to the Court of Additional Sessions Judge at Kelapur.

4. Before the Additional Sessions Judge, Kelapur, the appellants accused stood the trial on the basis of the Charge (Exh.14). They pleaded not guilty to the charge and claimed to be tried. Their defence was that of total denial. It is contended by the defence that Savita died accidental death as she suffered burn injuries while she was cooking food at night, due to accidentally falling on a mud oven (chulla). She was admitted to hospital by appellant no.2.

5. Prosecution examined in all six witnesses including complainant Dhanraj Tatewar (P.W.1), his uncle Pundalik Tatewar (P.W.2), Witness Sau. Sheela Pal (P.W.3) - who was residing in the neighborhood of parents of victim Savita, Vilas Muke (P.W.4), Police Head Constable Balbhim Jadhav (P.W.5) - who conducted investigation substantially and A.P.I. Aslam Khan (P.W.6) - who registered the offence on the basis of the complaint lodged by Dhanraj. As rightly observed by the trial Court in its judgment, appellants had not examined any witness in defence to substantiate their contention that Savita died accidental death. The trial Court accepted the evidence of witnesses Dhanraj, Pundalik and Sau. Sheela and held that there was demand of dowry by appellants through Savita and that, she was subjected to harassment on account of non-fulfillment of the demand of dowry amount and Savita died unnatural death by committing suicide as a result of and also on account of harassment to her and her death being within seven years from the date of her marriage, appellants were found guilty of the offences u/ss.498-A, 306 and 304-B r/w.34 of the Indian Penal Code. The trial Court has rejected the contention of the defence that Savita died accidental death. That is how, the appellants-accused came to be convicted and sentenced by the trial Court. Hence, this appeal.

6. I have heard Mr. Firdos Mirza, learned counsel for the appellants accused and Mr. Y. B. Mandpe, learned A.P.P. for the respondent-State, I have also gone through the judgment of the trial Court, as also evidence of material witnesses with the assistance of the learned counsel for the parties.

7. Before considering the submission of the learned counsel for the parties, I shall deal with the facts and circumstances of the case about which there is no dispute and which are also established on the evidence on record. It is not disputed that , on the day of occurrence, Savita was residing in her matrimonial home. Admittedly, victim Savita, accompanied by her husband Sharad, had visited her parental house two days prior to the date of occurrence. It is also admitted that, on the day of occurrence, at night Savita suffered 100% burns for which she was admitted to the Main Hospital, Yavatmal and in early hours on 23-6-1998, she died. The Medical Officer who conducted autopsy on her had body, in the post mortem report (Exh.51), gave his opinion as to the cause of death of Savita as 100% burns sustained by her. It is claimed by prosecution that Savita committed suicide by burning herself on pouring kerosene on her person. This claim of prosecution is controverted by the defence contending that Savita died accidental death as she fell on mud oven while preparing food and caught fire and thereby suffered burn injuries. The trial Court has rightly rejected the contention of defence. The circumstances attaining the case justified the conclusion that death of Savita was due to burning herself on pouring kerosene on her person. In the Post Mortem report (Exh.51), the Medical Officer has noted in column no.12 as "smell of kerosene from body". Defence has admitted the post mortem report (Exh.51). In addition to that, in spot panchanama (Exh.47), it is specifically mentioned that the floor was emitting smell of rock oil. It is further mentioned in the spot panchanama (Exh.47) that clothes of deceased namely her saree and blouse, which were seized from the place of occurrence, were emitting smell of rock oil. These clothes were seized under panchanama (Exh.48). In that seizure memo, it is specifically mentioned that the clothes were smelling of rock oil. It is needless to say that finding of kerosene smell on the clothes and the floor of the house where victim suffered burn injuries, conclusively goes to show that the victim, on pouring kerosene on her person, set herself on fire. In case of accidental death, as suggested by the defence, there was not even possibility of smell of kerosene from her body, her clothes and the floor where she suffered burns. Therefore, the possibility of victim Savita having suffered burns in an accident, as contended by the defence, is totally ruled out. The trial Court has, therefore, rightly held that Savita died suicidal death as a result of burn injuries suffered by her when she set herself on fire on pouring kerosene on her person.

8. It is admitted that death of Savita was within the span of 2 ½ years, of her marriage with appellant no.1 and that too, in the matrimonial home. The appellants, who were admittedly in the house when the incident took place, knowing well that Savita committed suicide, came up with a false plea that she died accidental death. Nothing is brought on the record by the defence from the prosecution evidence, much less by adducing evidence in defence to show that something was done by the appellants to present Savita from committing suicide and to save her life by atleast attempting to extinguish fire. It is true that, in respect of appellant Sharad, a frantic attempt has been made by the defence to show that he suffered burn injuries on his hands when he tried to save his wife Savita. But, there is no iota of evidence to show that the appellant in fact suffered burn injuries and that too, as a consequence of his efforts to save Savita from burning. It is surprising to note that appellant Sharad when examined u/s.313 of the Code of Criminal Procedure has not uttered even a word atleast to justify the defence. It is pertinent to note that it was suggested to witness Dhanraj (P.W.1) on behalf of defence that Savita died accidental death by falling on fire and that, appellant no.1's hand also caught fire. The witness has stoutly denied this suggestion. If really appellant Sharad had suffered injuries on his hands, he would have taken treatment for that and some evidence in that regard would have been adduced, in absence of that, it is very difficult to place reliance on the contention of the defence that appellant Sharad suffered burn injuries and that too, in his attempt to save his wife. However, this suggestion by itself goes to show that appellant no.1 Sharad was admittedly very much in the house at the time when victim Savita was burning. It is to be noted that, in the background of presence of appellant at the time of occurrence and his remaining stoic by not taking any positive steps to save his wife Savita, it can be said that these are the strong circumstances which lend assurance to the prosecution claim that appellant Sharad instigated her to commit suicide. Therefore, inaction on his part or her remaining totally passive at the time when Savita decided and actually committed suicide by burning herself openly in the house in his presence and having done nothing to prevent her from burning spell out his guilty intention. It is in this context that a false plea taken by him that she died of accident, when the cause of her death was very much within knowledge and also visualised by him with his eyes, the claim of prosecution as to cause of suicidal death of Savita gains strengthed.

9. Coming to the contentions raised by Mr.Firdos Mirza, learned counsel for the appellants, it is emphatically denied that there was demand of dowry amount and there was harassment and ill-treatment to Savita on account of non-fulfillment of said demands. The leaned counsel submitted that though witness Dhanraj Tatewar (P.W.1) and his uncle Pundalik Tatewar (P.W.2) claimed that Savita, during her visits to her parental house, told about the demand of dowry amount (umpaid) and of consequent harassment to her by appellants, no complaint was given to the Police Station at any time. It is pointed out that, at the time of last visit of Savita with appellant Sharad, appellant gave amount of Rs.400/- to Savita's father as she was suffering from ill-ness. It is submitted that, in that context, it does not stand probable that appellant at that time would have asked Savita to tell her father about payment of remaining amount of Rs.5,000/- and that, Savita, in turn, having told her father, would have disclosed that in case the amount was not paid, she was not going to remain alive. The leaned counsel also criticised the evidence of witness Sheela inasmuch as her evidence was not natural and that, she being not related, it was not probable and natural that victim Savita would disclose about the demand of dowry amount and consequent harassment to her. It is also submitted by the learned counsel that Dhanraj lodged complaint on 24-6-1998. No explanation is given for delay in lodging the report. The evidence of ill-treatment is vague. It is submitted that after Savita returned to matrimonial home and before she committed suicide, what actually happened in the house is not at all borne out on the evidence on record. That, there is nothing to show that the appellants, during the span of few hours, after the victim reached her matrimonial house, she was subjected to physical and mental cruelty so as to drive her to commit suicide. Therefore, appellants cannot be held responsible for suicidal death committed by Savita. The leaned counsel placed reliance on the following decisions.

1. 2004 ALL MR (Cri) 1220, State of Maharashtra Vs. Tukaram Nivrati Mane and another.

2. 2004 ALL MR (Cri) 452, Smt.Vandana w/o. Shridhar Pise Vs. Shridhar Kisan Pise and Others.

3. AIR 2002 SC 2078 : [2002 ALL MR (Cri) (S.C.) 1669], Girdhar Shankar Tawade Vs. State of Maharashtra.

4. 2004 ALL MR (Cri) 1787, Shamrao s/o. Dadarao Jadhav Vs. State of Maharashtra.

The above decisions would be taken into consideration while considering the submissions of the learned counsel for the appellants.

10. Mr. Y. B. Mandpe, learned A.P.P. supported the judgment of the trial Court. He submitted that on the evidence of witness Dhanraj (P.W.1) coupled with that of his uncle Pundalik (P.W.2) and independent witness Sheela (P.W.3), the factum of demand of dowry amount is established, so also harassment and cruelty meted out to Savita from time to time during the span of 2 ½ years after marriage while she was at her in-law's house. The witnesses have claimed in their evidence that victim Savita, whenever she used to visit her parental house, disclosed about the demands and consequential harassment to her for non-fulfillment of demands. The claim of witness Dhanraj that, at the time of Savita's last visit when she came to see her ailing father, she disclosed that there was demand of remaining amount of Rs.5000/- and for that, she was being harassed by the appellants and then, if that demand is not satisfied, she would not remain alive. The learned A.P.P. submitted that on that very day she came to her matrimonial home and admittedly, at night she committed suicide by burning herself. Therefore, when factum of demand as well as harassment in relation thereto having proved and death of Savita being within the period of seven years from the date of her marriage, it is legitimate to presume as envisaged u/s.113-A of the Evidence Act that appellant abetted her to commit suicide. He further contended that Savita's death caused by burns being otherwise than under normal circumstances within seven years of her marriage and she was subjected to cruelty or harassment by appellant in connection with demand of dowry amount, a presumption u/s.113-B of the Evidence Act has to be raised that the appellants caused dowry death as defined u/s.304-B(1) of the Indian Penal Code. He submitted that the trial Court has appreciated the evidence in correct perspective to hold the appellants guilty for committing offence u/s.498-A, 306 and 304-B of the Indian Penal Code. He submitted that admittedly just two days prior to her committing suicide, when she visited her parental house she told her father that there was demand of the amount and consequent harassment to her. She also told her father that in case amount is not paid, she would not remain alive. Giving much emphasis on this, the learned A.P.P. submitted that it is to be said that the victim Savita was subjected to cruelty soon before her death as contemplated u/s.304-B of the Indian Penal Code. The learned A.P.P. placed reliance on the decision of the Apex Court as under :

1. 2001 Cri.L.J. 2993 : [2000 ALL MR (Cri) 1180], Kans Raj Vs. State of Punjab and Others.

2. 2001 Cri.L.J. 4625 : [2002 ALL MR (Cri) 194 (S.C.)], Satvir Singh and Others Vs. State of Punjab and Another.

3. 2003 Cri.L.J. 4321 : [2003 ALL MR (Cri) 2398 (S.C.)], Kaliyaperumal and another Vs. State of Tamil Nadu.

4. 2003 Cri.L.J. 2831 : [2003 ALL MR (Cri) 1343], Savalram Vs. State of Maharashtra.

5. 2003 Cri.L.J. 3711 : [2003 ALL MR (Cri) 1784 (S.C.)], Hira Lal and others Vs. State (Govt. of N.C.T), Delhi.

Reference to the above decisions would be made while considering the submissions in detail.

11. Victim Savita died suicidal death on 23-6-1998. She was married to appellant Sharad some 2 ½ years prior to her death. It is claimed by prosecution that Savita was subjected to cruelty by appellants during the period she lived in matrimonial home with appellants and harassment and cruelty to her was on account of non-fulfillment of demand of dowry amount of Rs.5000/-. As the death of Savita was otherwise than under normal circumstances and was within seven years of her marriage with appellant Sharad and soon before her death she was subjected to cruelty and harassment for or in connection with any demand of dowry, it is claimed by prosecution that appellants are accountable for dowry death of Savita which is punishable u/s.304-B(2) of the Indian Penal Code, as also for the offence punishable u/s.306 of the Indian Penal Code. In this context, reliance is placed by prosecution on presumptions u/ss.113-B and section 113-A of Indian Evidence Act. It is also claimed by prosecution that the appellants are guilty of the offence u/s.498-A of the Indian Penal Code as Savita was subjected to cruelty as defined in explanation to section 498-A of the Indian Penal Code. For the purpose of better appreciation of evidence on record, it is necessary to re-produce relevant provisions contained in sections 498-A, 306 and 304-B of the Indian Penal Code as well as Section 113-A and 113-B of Indian Evidence Act.

12. Section 498-A of the Indian Penal Code reads thus :

"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."

13. Section 306 of the Indian Penal Code reads thus :

"306. Abetment of suicide -

If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 304-B. 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 purposes 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.

Section 113-A of the Evidence Act : Presumption as to abeimeni of suicide by a married woman.

When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation - For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).

Section 113-B. Presumption as to dowry death -

When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had 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 purpose of this section, "dowry death", shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860)."

14. The presumption under section 113-A can be drawn when it is proved the suicide has been committed within 7 years of marriage and that the husband or any relative of her husband must have subjected her to cruelty within the meaning of section 498-A, I.P.Code. The presumption is, however, rebuttable. The Supreme Court has made it clear that the requirement of proof beyond reasonable doubt against the accused does not stand altered even after the introduction of section 498-A of the Indian Penal and Section 113-A of the Indian Evidence Act. Failure on the part of the prosecution that the deceased was subjected to cruelty by the accused leads to the conclusion that presumption under section 113-A cannot be raised.

15. Section 113-B of the Indian Evidence Act carries a mandatory presumption of law. The presumption is the guilt of committing the offence of dowry death by any person who has been proved to have subjected a married woman concerned soon before such death to cruelty or harassment, for or in connection with dowry. When such death occurs within 7 years of marriage the presumption under section 113-B arises. A combined reading of section 113-B of the Evidence Act and section 304-B, I.P.Code shows that there must be material to show that soon before her death the victim must have been subjected to cruelty or harassment and that cruelty or harassment is for or in connection with the demand of dowry. When the death of the victim was not dowry death, presumption under section 113-B cannot arise. But when the deceased was continuously harassed and subjected to cruelty with demand of dowry and on the ground of her being barren the presumptions of both sections 113-A and 113-B of Evidence Act are applicable.

16. The Apex Court in 2000 Cri.L.J. 2993 : [2000 ALL MR (Cri) 1180] (supra), relied upon by the leaned A.P.P. Mr. Mandpe gave interpretation of words "soon before" used in section 304-B as under:

"Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straight-jacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before the alleged such 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 death 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."

17. Moreover, no presumption u/s.113-B of the Evidence Act would be drawn against the accused if it is shown that after alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence or cruelty and harassment there-after. 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 too stale before the date of death of the woman.

18. In that case, on facts it was found that where continuous harassment connected with demand of dowry was shown to be in existence till the date when the deceased was reported to have come to her brother's house and met her parents and thereafter she was not shown to have met anyone and no intervening circumstances showing the resolvement or settlement regarding demands of dowry was brought on record and she was found dead after 2 days in the house, it was held that the accused-husband was liable to be convicted.

19. The Apex Court in 2001 Cri.L.J. 4625 : [2002 ALL MR (Cri) 194 (S.C.)] (supra) on applicability of section 304-B of the Indian Penal Code observed that this section applies to a case of suicide, whether it is sequel to cruelty or harassment with the demand for dowry or not. The essential components of Section 304-B are (i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage. (ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under S.304-B. To be within the province of the first ingredient the provision stipulates that "where the death of a woman is caused by any burns of bodily injury or occurs otherwise than under normal circumstances." It may appear that the former limb which is described by the words 'death caused by burns or bodily injury or occurs otherwise than under normal circumstances. It may appear that the former limb which is described by the words' 'death caused by burns or bodily injury' is a redundancy because such death would also fall within the wider province of 'death caused otherwise than under normal circumstances'. The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence.

20. The Apex Court further observed that it is not enough that harassment or cruelty was caused to the women with a demand for dowry at sometime, if S.304-B is to be invoked. But it should have happened 'soon before her death'. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasise the idea that her death should, in all probability, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the Court would be in position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the Court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept 'soon before her death'.

21. In that case, the victim in her evidence said that 4 to 5 months after her marriage she was ill-treated on the ground of insufficiency of dowry and then she reported the matter to her father. But she did not say one word in her evidence regarding any other ill-treatment relating to dowry thereafter. Two important events which had happened in the family during the long interregnum of three years cannot be overlooked. A payment of amount three years back should not be presumed as part of the three year old demand for further dowry. There was death of evidence to show that the victim was subjected to cruelty or harassment connected with the demand for dowry, soon before the attempt to commit suicide. When the position is such, it is an unnecessary exercise on the part of Court to consider whether section 116 of the Indian Penal Code can even be linked with the offence u/s.304-B of the Indian Penal Code. However, the conviction passed on the accused u/s.498-A of the Indian Penal Code was confirmed by the Apex Court.

22. In 2003 Cri.L.J. 4321 : [2003 ALL MR (Cri) 2398 (S.C.)] (supra), Apex Court after re-producing Section 304-B of the Indian Penal Code and Section 113-B of the Indian Evidence Act observed thus :

"The necessity for insertion of the two provisions has been amply anlaysed 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 law in securing evidence to prove dowry related deaths, Legislature thought it wise to insert a provision relating to presumption of dowry death a proof of certain essentials. It is in this background presumptive. Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B, IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, 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". On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death."

"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occuring otherwise that in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B, IPC are pressed into service."

23. The Apex Court on interpretation of the word "cruelty" stated that consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498-A, IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. It is to be noted that Sections 304-B and 498-A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved.

24. This Court in 2003 Cri.L.J. 2831 : [2003 ALL MR (Cri) 1343] (supra) held that evidence relating to demand of dowry must be proximate to the date of commission of suicide. On facts it was found that last allegation relating to dowry related harassment was of November, 1999, while suicide took place on 2-7-2000 i.e. after the period of eight months. There were no complaints made either in April, 2000 or May, 2000. Therefore, dowry related harassment was not proximate to the date of commission of suicide. However, evidence on record showed that cruelty continued in the year 2000 for which no plausible explanation was given by defence as to why deceased wife committed suicide. Hence, conviction and sentence u/ss.306, 498-A was maintained while setting aside conviction u/s.304-B of the Indian Penal Code.

25. The Apex Court in 2003 Cri.L.J. 3711 : [2003 ALL MR (Cri) 1784 (S.C.)] (supra) stated that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The evidence of relatives of the deceased showed that at the time of marriage there was no demand of dowry. The grievances made subsequently were resolved by the authorities of crime against the Women Cell. The settlement arrived therein did not relate to dowry demand. There was no definite evidence of ill-treatment having immediate proximity to the date of death of deceased. Therefore, it was held that ill-treatment of dowry was not soon before the death and as such, conviction of the accused u/s.304-B of the Indian Penal Code was set aside.

26. Mr. Firdos Mirza, learned counsel for the Appellants placed reliance on the decision of our High Court in 2004 ALL MR (Cri) 1220 (supra) decided by me. In that case, for raising presumption of abetment to commit suicide, it is imperative to establish that the married woman is subjected to ill-treatment or cruelty. The presumption would be drawn only when the suicide is committed within the period of 7 years of marriage; married woman is subjected to cruelty and this cruelty was on account of non-fulfillment of illegal demand. Therefore, it goes without saying that unless the factum of ill-treatment is proved and established beyond doubt, on the evidence on record, no presumption could be drawn. In that case, on evidence it was found that the prosecution had utterly failed to establish that the deceased was subjected to cruelty.

27. Reliance is also placed on the decision of our High Court in 2004 ALL MR (Cri) 452 (supra), wherein it is held by me that the legislative intent is clear enough to indicate that in particular reference to Explanation (b), there shall have to be a series of acts in order to be harassment within the meaning of Explanation (b). The basic purport of statutory provision contained under Section 498-A of the Indian Penal Code is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed therein. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislative : whereas Explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intend expressed is equally heinous to match the physical injury : Whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of section 498-A. Therefore, if in a given case suicide is ruled out, in that event applicability of Section 498-A can be had only in terms of Explanation (b) thereto which in no uncertain terms records harassment of the woman to constitute "cruelty" only in the event of such a harassment being with view to coerce her or any other 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.

28. In that case, there was no specific averment that because of non-fulfillment of demand of Rs.50,000/-, the applicant was subjected to cruelty. That apart, even on the evidence on record, it was not made out that the applicant was subjected to physical cruelty on account of non-fulfillment of demand. Therefore, even accepting that non-applicant no.1 met demand of Rs.50,000/- for the purpose of opening poultry farm, by no stretch of imagination, it could be said that it was unlawful demand.

29. In AIR 2002 SC 2078 : [2002 ALL MR (Cri) (S.C.) 1669] (supra) the Apex Court held that the charges u/ss.306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other. But, in order to justify conviction under latter provision there must be available on record some material and cogent evidence. In that case, the Apex Court observed that corroboration though not essential as such, but its introduction is otherwise expedient to strengthen evidential value of declaration, independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of dying declaration as trustworthy piece of evidence.

30. In 2004 ALL MR (Cri) 1787 (supra) decided by me, it is held that it is not every harassment or every type of cruelty that would attract the provisions of S.498-A of the Indian Penal Code. Harassment is to be with definite object namely to coerce woman or any person related to her to meet any unlawful demand. Therefore, mere harassment by itself is not cruelty. Mere demand for property by itself is also not cruelty. It is only when harassment is shown to have been committed for the purpose of coercing a woman to meet the demands, it will amount to cruelty which is made punishable u/s.498-A of the Indian Penal Code. It must be established that beating or harassment was with a view to coerce the woman to commit suicide or to fulfill demands of the husband or the in laws. In that case, on facts it was found that there was no allegation that the victim was subjected to cruelty by the accused on account of non-fulfillment of demand in nature and therefore, there was no application of sub-clause(b) of explanation to section 498-A of the Indian Penal Code. So, the application does not arise.

31. Taking into consideration the legal position in respect of offences u/ss.498-A, 306 and 304-B of the Indian Penal Code as laid down by the Apex Court in various pronouncements, to which reference has been made in the earlier part of the judgment, it is clear in mind that the factum of cruelty, for and in relation to non-fulfillment of unlawful demand/dowry, has to be established by the prosecution on the evidence on record. It is also clear that once these facts are established on the evidence on record, then if the death of a married woman is otherwise than under normal circumstances within seven years of marriage, and if there is proximity between the harassment and unnatural death of the victim, then presumption u/ss.113-A and 113-B of the Evidence Act has to be raised to hold the husband or relative of the husband accountable for such unnatural death of that woman. In other words, unless the factum of cruelty is proved and established beyond reasonable doubt on the evidence on record, no such presumption could be drawn.

32. This takes me to consider the contentions of learned counsel for the appellants. The conviction of the appellants for the offences u/ss.304-B, 498-A and 306 of the Indian Penal Code is basically challenged by the appellants on the ground that on the evidence on record it is not established that the victim was subjected to harassment or cruelty by the appellants and that the said harassment was on account of or in relation to demand of dowry. It is needless to say that, in this connection, the evidence adduced by the prosecution consists of evidence of witness Dhanraj (P.W.1), witness Pundalik (P.W.2) and witness Sheela (P.W.30). I have to examine their evidence critically. I have also to consider the surrounding circumstances.

33. It is pertinent to note that on the factum of demand of dowry amount and cruelty to the victim in relation thereto, the prosecution is resting its claim on the evidence of the afore-mentioned three witnesses, of whom witness Dhanraj and Pundalik are close relatives of deceased. The father of victim could not be examined as witness as he was seriously ill and at the time of trial, he was almost lying on the dead bed. There is nothing on record to show that the victim had disclosed about demand of dowry by appellants, as also about the harassment caused to her in relation thereto, to any person residing in the neighborhood of her matrimonial home. There is nothing on record to show that the relations between the accused and the witnesses were not happy. The relations between them were not strained. It is a matter of record that appellant Sharad had accompanied victim Savita when she last visited her parental house to see her ailing father and in that visit, it was appellant Sharad who gave amount of Rs.400/- to father of Savita realising that the family was in financial crunch. Therefore, it can be safely said the witness Dhanraj, as also his uncle Pundalik had no grudge or grouse against the appellants. That is the reason why their evidence, natural as it was inspires confidence. They have certainly no tendency to exaggerate things while giving evidence before the Court. That apart, their evidence becomes acceptable and believable because of corroboration by witness Sheela who was admittedly known to the victim and her family, being residing in the neighborhood.

33-A. It is in the evidence that during the span of 2 ½ years of marriage, victim Savita has visited her parental house 5 to 6 times. It is nodoubt true that there is sharp controversy as to how many visits Savita had to her parents' house. The witnesses have claimed that she visited some 5 to 6 times while these witnesses in their statement recorded by police stated that she visited her parental house 2-3- times on account of festivals. I do not think that the controversy as to the number of visits victim Savita had to her father's house is of much consequence. Even accepting the fact that she visited 2-3 times on account of festivals, the fact remains that the relations even after the marriage and till her death between two families were cordial. That is to say inspite of there had been demand of dowry as alleged by the prosecution, there was no love lost or hatred between the members of the family of accused and that of victim.

34. Witness Dhanraj in his evidence stated that there was talk of dowry at the time of marriage and the dowry amount was fixed for Rs.9,000/- and his father paid Rs.4000/- in cash to accused no.1, but remaining amount of Rs.5,000/- remained unpaid. That amount was to be paid after the marriage, but as his father became ill, they could not pay the remaining amount. In his evidence, he further stated that during her visits after the marriage, Savita used to tell him that all the accused persons used to ill-treat her and that the ill-treatment was because of non-payment of amount of Rs.5,000/-. She further stated that accused no.1 used to tell Savita to bring Rs.5,000/- otherwise he would beat her. At the time of last visit of Savita, it was just two days before Savita put an end to her life, appellant no.1 who had accompanied with her, that time Savita told his father either to pay Rs.5,000/- otherwise she would not remain alive. He stated that Savita left on the next day and when she left the house, on the very day, in the evening, she committed suicide about which he received message. This witness was cross-examined at length by defence, but on material particulars so far as demand of dowry amount and harassment in relation thereto, his evidence remained undisturbed. It is found that this witness after having dead body of Savita cremated on 24-6-1998 went to Police Station and lodged complaint (Exh.40). If his version before the Court is scrutinized vis-a-vis report (Exh.40), it is found that his claim is consistent and corroborated in all respects by the statements made by him in the report (Exh.40). There is justification to say so as though witness was cross-examined, defence could not bring any inconsistency or overt statement or improvement on his part vis-a-vis in the report (Exh.40). His evidence appears to be quite natural and truthful as he did not hesitate in admitting in his cross-examination that appellant no.1 paid Rs.400/- at the time of that visit because his father was ill. In the nature of things, it was easy for him to deny that suggestion if he had really grudge against the appellant. He has admitted that on the next day when Savita left his house she was accompanied by her husband. He has stated in his evidence that though Savita had complained she would not remain alive if the amount is not paid, she went with her husband. He has denied the suggestion that Savita did not complain about any ill-treatment to her by the accused. It was suggested to him that Savita earlier had attempted twice to commit suicide. He has denied the suggestion. It is significant to note that the version of this witness Dhanraj that Savita used to tell about demand of dowry amount of Rs.5,000/- by appellant is not specifically controverted by the defence. Therefore, having regard to the fact that this witness has lodged complaint (Exh.40) in which he had made allegation about the demand of dowry and harassment and ill-treatment to his sister Savita in relation thereto, the version of witness Dhanraj inspires confidence. The trial Court has rightly accepted his evidence.

35. This takes me to consider the evidence of witness Pundalik who had no grudge against the appellants. In his evidence, he has stated that Savita visited parental house 5 to 6 times and she used to tell him and neighbours that all the accused used to ill-treat her due to demand of dowry and for non-payment of dowry. It has come in his evidence that father of Savita had paid Rs.4,000/- and remaining amount of Rs.5,000/- remained to be paid. He stated that when the father of Savita was ill seriously, Savita had come to her parental house and stayed for a day. He came to know this fact from his wife. Savita then left the parental house. This witness was subjected to cross-examination by defence, but nothing has been brought in his testimony to discredit his version. In fact, the witness was not cross-examined on material particulars regarding demand of dowry and ill-treatment in relation thereto. It has come in his cross-examination that he was present at the time of talk of marriage. What was suggested to him by defence then was that the dowry talk did not take place in his presence. It is pertinent to note that the defence came up with the story that the victim Savita died accidental death as a result of having fallen on the burning oven while preparing food. But very surprisingly, to this witness Pundalik it was suggested that Savita tried to commit suicide because of quarrel with her step-mother. Of course, that suggestion was also denied by the witness. He stated further in his evidence that because of non-payment of dowry Savita died. The witness has stood the test of cross-examination and therefore, his evidence inspires confidence and it is clinchingly brought in his evidence by prosecution that there was demand of amount of Rs.5,000/-, as remaining amount of dowry and there was consequential harassment and ill-treatment to victim Savita for inability of her father to pay the said amount.

36. Then we have to consider the evidence of witness Sheela. In her evidence, she has stated that Savita had come 5 to 6 times after marriage to her parental house and on 2-4 times she met her. The witness further claimed that Savita was telling her that remaining dowry amount was not paid and Rs.4000/- were paid and that, her in-laws were ill-treating her. The accused used to quarrel with Savita for dowry i.e remaining amount. This witness was again subjected to cross-examination, but nothing has been elicited in her evidence to discredit her testimony. In her evidence, she has stated that Savita told her that she would not remain alive and on the next day, they got the message that Savita died due to burns. She has stated that Savita had come on Sunday and, returned on Monday. The witness came to know that Savita had come lastly to see her father who was ailing and that the accused were demanding dowry and ill-treating her. This witness did not hesitate in stating in her cross-examination that she was on visiting term with parents of Savita. She admitted that Savita had visited her parental house 2-3 times only on account of festivals. So if entire evidence of this witness is concerned in correct prospective, I find that she is witness of truth. I do not agree with the submissions of the learned counsel for the appellants that this witness being residing in the neighborhood and on visiting terms with parents of Savita, she is interested witness and as such, her evidence is liable to be rejected. This witness has no grudge against Savita's husband and parents in-laws. Therefore, there was no reason for her to give evidence against the accused persons. In any case, the witness was not enimically disposed to the accused persons. As such, the witness cannot be said to be interested witness in prosecution against the accused. If that is so, then as has been done by the trial Court, the evidence of this witness lends assurance to the evidence of other two witnesses namely Dhanraj and Pundalik.

37. So, after having scrutinized and marashalled closely the evidence of these witnesses, the factual position that emerges out is that at the time of marriage of Savita with appellant Sharad there was demand of amount of Rs.9,000/- as dowry and that, father of Savita could pay amount of Rs.4000/- only and remaining amount of Rs.5,000/- remained to be paid as he could not dispose of his house to realise the amount. It is crystal clear on the evidence of these witnesses coupled with the facts and circumstances of the case including the recitals in the report (Exh.40) that during visits after marriage, Savita used to tell her father about demand of amount of Rs.5,000/- and consequential harassment to her by appellant Sharad. It is further clear on the evidence on record that even at the time of Savita's last visit when she came to see her ailing father, Savita did remind her father of payment of Rs.5,000/- and consequential harassment to her for the amount being not paid then and she also told that if the amount was not paid, she would not remain alive. Thereby it is clear that Savita herself had made aware her father that in case the remaining amount of dowry is not paid something untoward would happen to her life. It is clear that having halted at her father's house on that day, Savita left with appellant Sharad to matrimonial home on the next day and it is admitted that on that night itself in the matrimonial home Savita was found lying in the house having sustained burns to the extent of 100% and that, on the same night at about 1.45 a.m. she died.

38. In the earlier part of the judgment, I have found that Savita died suicidal death. Therefore, in the background that Savita was subjected to cruelty and harassment which was in relation to demand of dowry, it has to be said that her death was dowry death as defined u/s.304-B of the Indian Penal Code.

39. Mr. Firdos Mirza, learned counsel for the appellant-accused vehemently submitted that all that about harassment or ill-treatment to Savita, as deposed to by these witnesses, was in respect of the period much prior to her last visit to her parental house. He submitted that there is no evidence to show that in the intervening period Savita was subjected to cruelty. It is submitted that there is no evidence to show that immediately prior to Savita's visit to her father's house, she was subjected to cruelty. Similarly, there is no evidence to show that after she returned on visiting her father's house to the matrimonial home, on that day, during that short span of few hours, she was subjected to cruelty by the appellant. He therefore, submitted that the prosecution has not shown that soon before occurrence there was cruelty or harassment and therefore, there is no live link between cruelty because of dowry demand and the death of victim. He, therefore, submitted that presumption u/s.113-B of the Evidence Act cannot be raised. It is no doubt true that the Apex Court in 2003 Cri.L.J. 4321 : [2003 ALL MR (Cri) 2398 (S.C.)] (supra) has held that the presumption u/s.113-B of the Evidence Act has to be raised or shall be raised only on the proof of the fact that the woman was subjected to cruelty or harassment by her husband; such cruelty was for or in connection with any demand for dowry and such cruelty or harassment was soon before her death. It is true that prosecution has not brought on record any direct evidence showing that soon before Savita committed suicide, she was subjected to cruelty on account of demand of dowry, at her parental home. But then, in my opinion, from what has been disclosed by Savita in her visit to her father's house that there has been harassment and ill-treatment to her by appellant Sharad on account of non-payment of remaining amount of Rs.5000/-, it has to be said and it can be deemed to be harassment or ill-treatment to the victim "soon before her death". The determination of the period which can come within the term "soon before" is left to be determined by the Courts depending upon the facts and circumstances of each case. In this context, the Apex Court has indicated that the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and death in question. There must be existence of proximate and live link between effect of cruelty based on dowry demand and connected death. If the alleged incident of cruelty is remote in time and has become stale never not to disturb mental equilibrium of the woman concerned, it would be of no consequence. If we are to analyse what was disclosed by Savita to her brother and uncle and that too, at the time when it was disclosed, there could be no hesitation to come to the conclusion that it related to harassment or atleast it can be deemed to be relating to the harassment which he had immediately prior to that when she was in the matrimonial home. It is pertinent to note that the fact that immediately on the day when she returned from her father's house she committed suicide. These was absolutely no reason for her to commit suicide, if all was well with her in her matrimonial home. This is to be appreciated with her statement to her father, as deposed to by witness Dhanraj that if the amount is not paid she would not remain alive. In my considered opinion, this disclosure by the victim immediately prior to the date of occurrence spells out of harassment and cruelty to her at the hands of appellant and that too, continuous one during her stay in the matrimonial home till her death.

40. While appreciating the evidence led by prosecution consisting of evidence of Dhanraj (P.W.1), Pundalik (P.W.2) and Sheela (P.W.3), it is found that nothing has been elicited by defence to show that victim Savita was hot tempered or over sensitive so as not to sustain ordinary rebukes or taunts so as to make her desperate and that too, lead her to put end to her life. It is not even suggested by defence that Savita had some sort of grudge against the appellant and her in-laws for any reason on account of which she was led to put an end to her life. It is a matter of record that Savita had a child. She had married life with appellant for about 2 ½ years. In this situation, from the fact of having a child and she having access to her parent's house at times whenever desired by her and also the appellant Sharad having accompanied her at the time of her last visit to see her ailing father, it is crystal clear that she was contented. In other words, there was absolutely no reason for her to commit suicide. In such a situation, when on the record it is established that there was persistent demand of dowry and she was subjected to cruelty in relation to or for non-fulfillment of demand of dowry and when she has committed suicide within seven years of her marriage, it is legitimate to raise presumption that her suicidal death is a dowry death, for which appellant Sharad is accountable. At the same time, harassment to her by appellant was in relation to and for non-fulfillment of dowry when it resulted into suicidal death of Savita and hence, a legitimate presumption has to be raised that her husband-appellant Sharad was accountable for her suicidal death. That is how, taking recourse to the presumption u/s.113-A of the Evidence Act, it has to be said that the appellant has abetted or instigated by his act of causing harassment or ill-treatment, which was on account of non-fulfillment of his demand of dowry amount and which led her to commit suicide. It is also very clear from the evidence on record that appellant nos.2 and 3 had no role to play in Savita's commission of suicide. The reason being that there is no evidence that these two appellants directly asked at any point of time to Savita to bring dowry amount from her father. There is no evidence that these appellants subjected Savita to harassment, either physically or mentally on account of non-payment of dowry amount of Rs.5,000/- by her father. It has come in the evidence that appellant no.2 Champat had in fact taken victim Savita to the hospital after she suffered burns. There is no evidence to show that appellant nos.2 and 3 were present at the time when Savita actually set herself on fire. Therefore, even no conduct is exhibited by appellants nos.2 and 3 to indicate that they instigated or abetted Savita to commit suicide. Therefore, in my considered opinion, appellant nos.2 and 3 cannot be held accountable for suicidal death of Savita, as also her dowry death as defined u/s.304-B of the Indian Penal Code. There being no allegation even on the part of prosecution about harassment and cruelty in any other manner other than that on account of non-fulfillment of dowry taken, appellants nos.2 and 3 cannot be held guilty for the offence u/s.498-A of the Indian Penal Code. Therefore, the conviction and sentence of appellant nos.2 and 3 passed by the trial Court cannot sustain and will have to be set aside.

41. So far as appellant is concerned, in addition to the proof of the fact that he has subjected the victim to cruelty on account of non-fulfillment of his demand of dowry amount of Rs.5,000/-, he is found accountable for dowry death as well as suicidal death of Savita because of the conduct exhibited by him. The tenor of cross-examination to prosecution witness would suggest that appellant Sharad was present at the time Savita died by burning herself. It was suggested that appellant Sharad in fact made efforts to extinguish fire and in the attempt, he also suffered burn injuries. But, nothing has been elicited in the evidence to substantiate this plea of appellant Sharad. That apart, a false plea is taken by the appellant that Savita suffered burn injuries as a result of fall on the burning mud oven while she was cooking food. While appreciating the evidence and also the contention of the defence, it is found that Savita died suicidal death as alleged by the prosecution. It is found that having regard to the medical evidence and the circumstances including detection of kerosene smell on the clothes of Savita and also smell of kerosene on the floor of the house where she was lying, it totally falsities the plea of defence that Savita died accidental death. In fact, these positive findings of detection of kerosene lends assurance to the prosecution evidence and claim that Savita died suicidal death. In my considered opinion, in such a situation when everything was within the knowledge of appellant Sharad, as he was very much present at the time when the incident of burning took place, the false plea taken by him that she died accidental death provides a link to strengthen the prosecution claim that she died suicidal death. It may be that appellant Sharad, when visited with Savita to her parent's house to see her ailing father, made gesture by giving the amount of Rs.400/- having regard to the critical condition of her father, as also their need of money and it is certainly laudable. But that in no way will absolve him of his atrocities with the victim in persistently making unlawful demand of dowry and subjecting her to cruelty for and in relation to non-fulfillment of the demand, which ultimately led Savita to put an end to her life. That is how, in my considered opinion, the trial Court has rightly found appellant Sharad guilty for the offences u/Ss.498-A, 304-B and 306 of the Indian Penal Code.

42. The trial Court has awarded sentence of rigonrous imprisonment of two years on each count and fine of Rs.1,000/- each for the offences under sections 498-A and 306 of the Indian Penal Code. So far as offence u/s.304-B of the Indian Penal Code is concerned, the trial Court has awarded sentence of rigorous imprisonment for seven years and fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months. As per section 304-B(2) of Indian Penal Code, whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life. The trial Court has, thus, awarded minimum sentence, I do not find any special and adequate reason to award sentence less than minimum prescribed nor there is any provision under sub-section(2) of section 304-B of the Indian Penal Code providing for awarding sentence less than minimum prescribed. Therefore, there is no justification in interfering with the order of sentence passed by the trial Court. Hence, the order.

ORDER

The appeal is partly allowed.

The order of conviction of sentence passed by the trial Court as against appellant nos.2 and 3 is quashed and set aside. Their bail bonds shall stand cancelled.

The appeal of appellant Sharad is dismissed.

The conviction and sentence passed against appellant Sharad for the offences u/Ss.306, 304-B and 498-A of the Indian Penal Code is confirmed. Appellant Sharad, who is in jail, to serve out the sentence.

Appellant Sharad is entitled to set off u/s.428 of the Code of Criminal Procedure in respect of his detention pre-trial, as also after conviction.

Order accordingly.