w w w . L a w y e r S e r v i c e s . i n



Dharam Das v/s State of U.P.


Company & Directors' Information:- G DAS & CO PVT LTD [Active] CIN = U74992WB1935PTC008299

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Company & Directors' Information:- DHARAM (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036745

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Company & Directors' Information:- DAS & DAS PVT LTD [Strike Off] CIN = U51109WB1950PTC019222

Company & Directors' Information:- A S DAS CO PVT LTD [Strike Off] CIN = U51109WB1957PTC023552

Company & Directors' Information:- DAS-G INDIA PRIVATE LIMITED [Active] CIN = U24304DL2020PTC370609

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Company & Directors' Information:- P K DAS & CO PVT LTD [Strike Off] CIN = U74210WB1955PTC022259

    Criminal Appeal No. 6896 of 2011

    Decided On, 29 September 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAMESH SINHA & THE HONOURABLE MR. JUSTICE RAJ BEER SINGH

    For the Appellant: Ganesh Shanker Srivastava, Advocate. For the Respondent: Ms. Archana Singh, AGA.



Judgment Text

Raj Beer Singh, J. for the Bench1. This Criminal Appeal has been preferred against judgment and order dated 17.11.2011 passed by Additional Sessions Judge, Court No. 3, Kaushambi in Session Trial No. 61 of 2009, Crime No. 277 of 2008, under Sections 498-A/34, 323/34, 326/34, 304-B/34 of Indian Penal Code (hereinafter referred as IPC) and section Dowry Prohibition Act (hereinafter referred as D.P. Act), whereby accused-appellant Dharam Das has been convicted under section 498-A, 304-B of IPC and of DP Act. He was sentenced to imprisonment for life under Section 304-B IPC, imprisonment for five years along with fine of Rs. 15,000/- under Section 3 of DP Act and two years rigorous imprisonment along with the fine of Rs.1,000/- under Section 4 of DP Act. No sentence was awarded under section 498-A IPC. All the above sentences were to run concurrently. However, co-accused Dharam Veer, Kailasha Devi and Phaguhar were acquitted of all the charges.2. Accused-appellant Dharam Das is husband of deceased Saroj Devi and their marriage was solemnized on 20.02.2008. After marriage, accused-appellant Dharam Das and his family members used to beat and harass Saroj Devi for dowry. They used to demand a buffalo and cash of Rs. 40,000/-. Whenever deceased used to meet her family members, she used to tell them about the dowry demand and harassment. First informant Veer Singh, who is father of deceased Saroj Devi, tried to make accused-appellant understand but in vain. It is alleged that on 25.09.2008 accused-appellant Dharam Das and his other family members put the deceased Saroj Devi ablaze by pouring kerosene over her and resultantly, she has suffered serious burn injuries. After information, PW-1 Veer Singh and his family members reached there and the deceased was taken to Chayal Primary Health Center and from there she was referred to Swaroop Rani Nehru Hospital, Allahabad and accordingly she was admitted there.3. PW-1 Veer Singh reported the matter to police by submitting a tehrir exhibit Ka-1 and consequently first information report was registered on 26.09.2008 at 23:30 hours under Section 498-A, 326, 323 of IPC and of DP Act vide exhibit ka-8 .4. It is also the case of prosecution that on 26.09.2008, while deceased was lying admitted in said SRN hospital, her statement was recorded by Sri Sudhir Kumar Mishra, Additional City Magistrate, Allahabad vide exhibit ka-15 and in that dying declaration deceased has told that her husband Dharam Das used to beat her and that a day before, he beat her severely and set her ablaze after pouring kerosene. She has also stated that before that incident, he has turned his mother and brother out of the home.5. During treatment, on 26.11.2008 deceased Saroj Devi succumbed to injuries. Inquest proceedings were conducted by PW-3 Surendra Bahadur Singh, Nayab Tehsildar vide inquest report exhibit Ka-2. Dead body of deceased was sealed and sent for post-mortem. After death of deceased, section 304-B IPC was added during investigation.6. Post-mortem on dead body of deceased was conducted on 26.11.2008 by PW-5 Dr. T.B. Maurya vide post-mortem report exhibit Ka-10. She has sustained following ante-mortem injuries:(i) Old healed burn injury present on Rt side face including Rt eye.(ii) Post burn granulating tissue present on posterior of whole chest including belly axilla & upper part of abdomen.(iii) Healed burn injury present on front of both upper limbs.(iv) Bed sore 4 x 3 cm present on back of pus coming out from sore.Cause of death was stated due to septimic shock as a result of ante mortem injury.7. Investigation was conducted by PW-6 S.I. Ram Pal Chaudhary. During course of investigation, he prepared site plan exhibit Ka-11, recorded statements of witnesses and after completion of investigation, accused persons were charge sheeted.8. Accused-appellant Dharam Das and co-accused Dharam Veer, Kailashi Devi and Phaguhar were charged for the offences under Section 498-A, 323/34, 326/34, 304-B,/34 of IPC and 3/4/34 of DP Act. In order to bring home guilt of accused persons, prosecution has examined nine witnesses.9. Accused-appellant Dharam Das and co-accused persons were examined under section 313 Cr.P.C. wherein accused-appellant Dharam Das has denied the prosecution evidence and stated that he has never made any demand of dowry nor harass the deceased and that on 24.09.2008, she has suffered burn injuries while preparing food. He has tried to save her and in that process, he has also suffered burn injuries. Deceased was admitted by him in Priya hospital on 24.09.2008. On 25.09.2008 her family members came and they forcibly admitted her in Swaroop Rani Nehru Hospital and a false report was lodged.10. In defence evidence, one Dr. Kaushlesh Dwivedi has been examined as DW-1.11. After hearing and analysing the evidence on record, accused-appellant Dharam Das was convicted under section 304-B of IPC and 3/4 of DP Act and sentenced as stated in opening part of this judgment.12. Being aggrieved by the impugned judgment and order, accused-appellant has preferred present criminal appeal.13. Heard Sri Ganesh Shanker Srivastava learned counsel for appellant and Ms. Archana Singh, learned A.G.A. for the State and perused the record.14. Learned counsel for the appellant has mainly argued that deceased has suffered burn injuries accidentally while making food and that accused-appellant has tried to save her and that in that process accused-appellant himself has sustained burn injuries at is hands and thus, the prosecution version is not reliable. Both the material witnesses are family members of deceased and that as the deceased has married with accused-appellant against wishes of her parents, thus due to that reason they have deposed falsely against the accused-appellant. It was submitted that alleged dying declaration (exhibit ka-15) of deceased could not be proved, as much as, the Magistrate, who recorded it could not be examined and that there is no certificate of doctor regarding her capacity to make such an statement. Besides the accused-appellant Dharam Das, his brother Dharam Veer, mother Kailashi Devi and father Phaguhar were also named in first information report and were to put to trial but they have been acquitted by the trial court and thus, the conviction of accused-appellant is not in accordance with law. It was submitted that from the defence evidence, it has been established that accused-appellant has sustained burn injuries at his hands, which indicates that accused-appellant has tried to save the deceased and after incident, he has taken the deceased to hospital which clearly indicates his bonafideness. It was argued that the trial court has not considered evidence in correct perspective and committed error by convicting the accused-appellant.15. Per-contra, it has been submitted by learned State counsel that accused-appellant is husband of deceased and that deceased has died due to burn injuries within a short span of time i.e. within 9 months of her marriage. There is clear and consistent evidence of PW 1 Veer Singh and PW 2 Krishna Devi that accused-appellant used to harass the deceased on account of dowry. Further, there are two dying declarations of deceased. First one was made to PW 1 Veer Singh, while deceased was being taken to hospital and second dying declaration exhibit ka-15 was recorded by Magistrate. In both the dying declarations, deceased has stated that she was being harassed for dowry and that accused-appellant has set her ablaze by pouring kerosene. Both the dying declarations have been proved in accordance with law. It was submitted that case of accused-appellant is different from rest of accused persons, mainly because said co-accused were not named by the deceased in her dying declaration. Further, accused-appellant is husband of the deceased and it was his duty to protect her. It has been submitted that conviction of accused-appellant is based on evidence and it calls for no interference.16. We have considered rival contentions and perused the record.17. In evidence, PW-1 Veer Singh, who is father of the deceased, has stated that the marriage of his daughter Saroj Devi was solemnized on 20.02.2008 with accused-appellant Dharam Das and he has given dowry articles as per his capacity. After 6-7 days of marriage, when Saroj Devi came to her paternal home, she has told that the family members of her in-law's were harassing her on account of dowry and they are not providing her even the necessary basic amenities and food. She has told that accused-appellant and his family members were demanding a buffalo and Rs.40,000/- cash. PW-1 Veer Singh tried to convince her and after one and a half month, she was sent back to her matrimonial house. Whenever PW-1 Veer Singh used to visit her matrimonial home, deceased used to tell that accused persons were continuously harassing her for dowry.On 25.09.2008 at 05:00 AM he was informed on telephone that his daughter Saroj has been burnt. He reached there and found that his daughter was lying there in burnt condition and all the family members of her in-law's have fled away. PW-1 Veer Singh took the deceased to Chayal Primary Health Center and from there she was admitted in Swaroop Rani Nehru Hopital, Allahabad. PW-1 Veer Singh has further stated that his daughter has told him that her husband Dharam Das and his family members have burnt her by pouring kerosene. On 26.09.2008 PW-1 Veer Singh has reported the matter to police and on 26.11.2008 deceased has succumbed to the burn injuries.18. PW-2 Smt. Krishna Devi, who is mother of the deceased, has also made a similar statement and stated that marriage of her daughter Saroj Devi was solemnized with Dharam Das on 22.02.2008 and they have given dowry as per their capacity. After marriage when deceased came to her paternal home she has told that accused persons were demanding a buffalo and cash of Rs.40,000/- and on that account they were harassing her. They tried to convince her and sent her back to her matrimonial home but even after that accused persons continued harassing the deceased on account of the said demands. When third time her daughter Saroj Devi came from her matrimonial home, she has told that she was continuously being harassed and that accused persons were not allowing her even to take proper food. Her husband Dharam Das used to beat her after consuming liquor. However, deceased was again sent back to her matrimonial home and thereafter, on day of incident, they were informed that accused persons have burnt the deceased. PW-2 Krishna Devi further stated that her husband went there and while taking the deceased to hospital, in the way, they have stopped at her home and deceased has told her that accused persons were exhorting to kill her by burns. Thereafter, deceased was taken to Chayal Hospital and from there, she was admitted in Swaroop Rani Nehru hospital, where during treatment, she died.19. PW-3 Surendra Bahadur Singh, Nayab Tehsildar, has conducted inquest proceedings.20. PW-4 Constable Dharma Chaturvedi, has recorded the FIR.21. PW-5 Dr. T.B. Maurya has conducted post-mortem of the deceased.22. PW-6 S.I. Rampal Chaudhary has conducted investigation.23. PW-7 Dr. R.P. Mishra, has medically examined deceased at Swaroop Rani Nehru Hospital.24. PW-8 ASP Gyan Prakash Chaturvedi has conducted further investigation and he has filed supplementary charge sheet exhibit Ka-14. He has also stated that on 26.09.2008 statement of deceased was recorded by Sri Sudhir Kumar Mishra, Additional City Magistrate, Allahabad and in that dying declaration deceased has told that her husband, mother-in-law and brother-in-law used to beat her and that a day before, they have burnt her after pouring kerosene.25. PW-9 Subha Mishra, is wife of late Sudhir Kumar Mishra, who recorded dying declaration of deceased. She has stated that Sudhir Kumar Mishra was posted as Additional City Magistrate, Allahabad and he has died on 08.01.2009 while he was still working as Additional City Magistrate, Allahabad. Thereafter, she was provided a job in collectorate in dying in harness. She is well conversant with handwriting of her husband Sudhir Kumar Mishra. She has stated that exhibit Ka-15 is in handwriting and under signature of her husband Sudhir Kumar Mishra.26. In defence evidence, DW-1 Dr. Kaushlesh Dwivedi has stated that on 24.09.2008 at about 11:30 pm Saroj Devi was brought at Priya Hospital Kandhaipur, Dhoomanganj, Allahabad in burnt condition. Dharam Das was also suffering from some burn injuries. DW-1 has asked the family members of injured Saroj Devi (deceased) to get her admitted in Government Hospital. DW-1 has provided first aid to her, however, Dharam Das was admitted her in hospital. On the next day, Saroj Devi was taken away by her family members from his hospital but Dharam Das remained admitted there for two days and he was discharged on 26.09.2008. He has proved the entry of admission of Dharam Das in Hospital as exhibit 65 Kha-1 and prescription paper as exhibit 65 Kha-2.27. In this case, the conviction of accused-appellant is based on testimony of PW-1 Veer Singh and PW-2 Krishna Devi, who are parents of deceased, as well as the dying declaration of deceased. It is not disputed that marriage of deceased with accused appellant has taken place on 20.02.2008 and that alleged incident took place on the night of 24/25.09.2008 at the matrimonial home of the deceased and that deceased died of burns on 26.11.2008.28. Before proceeding further, it will be useful to state the basic ingredients of Section 304-B IPC. The requirement of Section 304-B is that the death of a woman be caused by burns, bodily injury or otherwise than in normal circumstances, within seven years of her marriage. Further, it should be shown that soon before her death, she was subjected to cruelty or harassment by her husband or her husband's family or relatives and thirdly, that such harassment should be in relation to a demand for dowry. Once these three ingredients are satisfied, her death shall be treated as a "dowry death" and once a "dowry death" occurs, such husband or relative shall be presumed to have caused her death. Thus, by fiction of law, the husband or relative would be presumed to have committed the offence of dowry death rendering them liable for punishment unless the presumption is rebutted. It is not only a presumption of law in relation to a death but also a deemed liability fastened upon the husband/relative by operation of law. (vide Rajesh Bhatnagar vs. State of Uttarakhand, (2012) 7 SCC 91).29. A reading of section 304-B I.P.C. would show that when a question arises whether a person has committed the offence of dowry death of a woman that all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death to have caused the dowry death if it is shown that soon before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied.(Hem Chand v. State of Haryana reported in [(1994) 6 SCC 727])30. In case of Kashmir Kaur Vs. State of Punjab, AIR 2013 SC 1039, Hon'ble Apex Court held that in a case of trial for dowry death the essential ingredients to attract the provisions of section 304-B I.P.C. for establishing offence are (a) that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry, (b) the death of the deceased woman was caused by any burn or bodily injury or some other circumstance, which was not normal, (c) such death occurs within seven years from the date of her marriage, (d) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband, (e) such cruelty or harassment should be for or in connection with demand of dowry, and (f) it should be established that such cruelty and harassment was made soon before her death.31. The necessary ingredients to prove the offence of dowry death punishable under section 304-B IPC have been discussed by the Hon'ble Apex Court time and again. In case of Rajender Singh Vs State of Punjab Criminal Appeal No. 2321 of 2009, decided on 26.02.2015, the Hon'ble Apex Court held as under (para 9 & 10):''9, The ingredients of the offence under Section 304-B have been stated and restated in many judgments. There are four such ingredients and they are said to be:(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;(b) such death must have occurred within seven years of her marriage;(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and(d) such cruelty or harassment must be in connection with the demand for dowry.10, This has been the law stated in the following judgments:Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 at pages 360-361; Bachni Devi & Anr. v. State of Haryana, (2011) 4 SCC 427 at 431, Pathan Hussain Basha v. State of A.P., (2012) 8 SCC 594 at 599, Kulwant Singh & Ors. v. State of Punjab, (2013) 4 SCC 177 at 184-185, Surinder Singh v. State of Haryana, (2014) 4 SCC 129 at 137, Raminder Singh v. State of Punjab, (2014) 12 SCC 582 at 583, Suresh Singh v. State of Haryana, (2013) 16 SCC 353 at 361, Sher Singh v. State of Haryana, 2015 1 SCALE 250 at 262.''32. Keeping in view the position of law, as discussed above, it may be stated that in the instant matter, case of prosecution is that marriage of deceased Saroj Devi with accused-appellant was solemnised only about 7 months prior of incident and that she died of burn injuries after two months of incident. PW-1 Veer Singh and PW 2 Krihna Devi, who father and mother of the deceased, have stated that in the marriage of deceased they have given dowry articles as per their capacity but after 6-7 days of marriage, when deceased Saroj Devi came to her paternal home, she has told that the family members of her in-law's were harassing her on account of dowry and they were demanding a buffalo and Rs.40,000/- cash. The evidence of PW-1 Veer Singh further shows that after her marriage, deceased visited his house for three times and she always told that she was being harassed on account of dowry. Similarly whenever PW-1 Veer Singh used to visit her matrimonial home, she used to tell that accused persons were continuously harassing her for dowry. Both the witnesses have stated that on 25.09.2008 at 05:00 AM the deceased was burnt by accused-appellant and his family members and that after information, when PW 1 Veer Singh reached there, he found that his daughter was lying there in burnt condition and all the family members of her in-law's have fled away. PW-1 Veer Singh took the deceased to Chayal Primary Health Center and from there she died of burn injuries on 26.11.2008. It is also the case of prosecution that while the deceased was being taken to the hospital by PW 1 Veer Singh, the deceased has told him that her husband (accused-appellant) and his family members have burnt her. Further while the deceased was lying admitted in SRN hospital, on 26.09.2008 her statement was recorded by Sri Sudhir Kumar Mishra, Additional City Magistrate, Allahabad, which has been proved by PW-9 Smt Subha Mishra as exhibit ka-15.33. The trial court has based conviction of accused-appellant Dharam Das on dying declaration (exhibit ka-15) of deceased as well the evidence of PW-1 Veer Singh and PW-2 Krishna Devi. It is not disputed that marriage of deceased with accused-appellant Dharam Das took place on 20.02.2008 and that alleged incident of burning the deceased took place on 25.09.2008 at her matrimonial home. It is also not disputed that deceased succumbed to burn injuries on 26.11.2008 in SRN hospital. Thus deceased died of burn injuries within 7 years of her marriage. As stated earlier the conviction of accused-appellant Dharam Das is based on dying declaration of deceased as well the evidence of PW 1 Veer Singh and PW-2 Krishna Devi.34. So far dying declaration of deceased is concerned, the case of prosecution is that after the incident, father of deceased (PW-1 Veer Singh) and his family members reached at the matrimonial home of his daughter Saroj Devi, where she was lying in burnt condition and took her to PHC Chayal and from where she was referred to SRN hospital, Allahabad. PW-1 Veer Singh has further stated that when he enquired from his daughter regarding, she has told that her husband Dharam Das and his family members have put her on fire by pouring kerosene. It is further that the case of prosecution that deceased was admitted in SRN hospital and on 26.09.2008 her statement was recorded by Sri Sudhir Kumar Mishra, Additional City Magistrate, Allahabad, which has been proved by PW-9 Smt Shubha Mishra as exhibit ka-15 by way of secondary evidence. As Sri Sudhir Kumar Mishra, the then Additional City Magistrate, Allahabad has passed away, his wife PW-9 Smt Shubha Mishra, who posted in collectorate, Allahabad has proved exhibit ka-15 by identifying his hand writting and signature. Exhibit ka-15 reads as under:“LANGUAGE”35. Though the trial court has not discussed the alleged first dying declaration made by deceased to her father PW-1 Veer Singh, however, PW 1 Veer Singh has made a clear statement that deceased has told him that her husband has put her on fire by pouring kerosene and he again stated that family members of accused-appellant were also involved in said incident. Thus, there are two dying declarations, first is oral dying declaration made by deceased to her father (PW-1 Veer Singh) and second was recorded by Sri Sudhir Kumar Mishra, Additional City Magistrate, Allahabad, which has been proved by PW-9 Smt. Shubha Mishra as exhibit ka-15.36. The admissibility of dying declaration has been explained under Section 32 of Indian Evidence Act which states that such a statement can be proved when it is made by a person as to the cause of his death, or as to any of the circumstances of transaction which resulted in his death. So far as the position of law regarding dying declaration is concerned, it is well settled that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. However, when a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. The principles relating to dying declaration are no longer res integra and it would be apposite to refer the decision of the Hon'ble Apex Court in Paniben (Smt) v. State of Gujarat (1992) 2 SCC 474, wherein the concepts are summed up as follows:(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Mannu Raja v. State of M.P., [1976] 2 SCR 764.(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of M. P. v. Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi v. State of Bihar, AIR 1983 SC 164.(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. Ram Chandra Reddy v. Public Prosecutor, AIR 1976 S.C. 1994.(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Rasheed Beg v. Sate of Madhya Pradesh, [1974] 4 S.C.C. 264.(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M. P.., AIR 1982 S.C. 1021)(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. 1981 SCC (Crl.) 531).(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v.Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617).(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505)(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and another v. State, AIR SC912)(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State U.P. v. Madan Mohan, AIr 1989 S.C. 1519) In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declaration made by the deceased Bai Kanta. This Court in Mohan Lal v. State of Maharashtra, AIR 1982, S.C. 839 referred to held:"Where there are more than the statement in the nature of dying declaration, one first in point of time must be preferred".It was also observed that if the plurality of dying declarations could be held to be trust worthy and reliable, they have to be accepted.37. In case of Koli Chunilal Savji V State of Gujrat AIR 1999 SC 3695, the Hon'ble Apex Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, the officer concerned has ensured that the declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the declaration should be relied upon. (See also: Baburam V State of Punjab, AIR 1998 SC 2808).38. In case of Babulal v. State of M.P.(2003) 12 SCC 490, it has been held as under:."7. ... A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. Then mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentiri). Mathew Arnold said, "truth sits on the lips of a dying man". The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice."39. Dealing with the relevancy of dying declaration, Hon'ble the Apex Court in the case of Laxman v. State of Maharashtra reported in MANU/SC/0707/2002 has held as follows:"3. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a Rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."40. In Atbir v. Government of NCT of Delhi MANU/SC/0576/2010 : (2010) 9 SCC 1, the Hon'ble Apex Court, after referring its earlier judgments, has laid following guidelines with regard to admissibility of the dying declaration:''The analysis of the above decisions clearly shows that:(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.(iv) It cannot be laid down as an absolute Rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The Rule requiring corroboration is merely a Rule of prudence.(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.(viii) Even if it is a brief statement, it is not to be discarded.(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."41. Recently in case of Jagbir Singh V State NCT of Delhi (2019) 8 SCC 779, after referring to its several earlier judgments, Hon'ble Apex Court summed up the law relating to dying declaration as under:''30. A survey of the decisions would show that the principles can be culled out as follows:(a). Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;(b). If there is nothing suspicious about the declaration, no corroboration may be necessary;(c). No doubt, the court must be satisfied that there is no tutoring or prompting;(d) The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration;(e). Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established;(f). However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconciliable.(g). In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;(h). The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.(i). In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon?''42. From the above stated pronouncements, it is clear that the law regarding dying declaration is quite well settled that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. If the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. However, when a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate, and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. The evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. What is essentially required, is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind, and where the same is proved by the testimony of the Magistrate, to the extent that the declarant was in fact fit to make the statements, then even without examination by the doctor, the said declaration can be relied and acted upon, provided that the court ultimately finds the same to be voluntary and definite. Certification by a doctor is essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise.A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment.If there are more than one dying declarations then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.43. Keeping in view the cautions reminded from time to time by the Hon'ble Apex Court in dealing with the evidence of dying declaration, in the present case, it may be seen that the Magistrate, who recorded dying declaration exhibit ka-15, has passed away and thus it was proved by way of secondary evidence by examining his wife Smt Subha Mishra, who was posted in collectorate, Allahabad. Therefore, the prosecution was well within its rights to lead secondary evidence. As PW 9- Smt Subha Mishra is wife of said Additional City Magistrate Sri Sudhir Kumar Mishra, thus her statement that she is well conversant with hand writing and signature of her husband Sri Sudhir Kumar Mishra can not be doubted. The conditions for examining her as witness are duly satisfied and it stand proved that exhibit ka-15 was recorded by Sri Sudhir Kumar Mishra, the then Additional City Magistrate, Allahabad. The version of PW-9 Subha Mishra also finds corroboration from statement of PW-8 ASP Gyan Prakash Chaturvedi, who has also stated that on 26.09.2008 statement of deceased was recorded by Sri Sudhir Kumar Mishra, Additional City Magistrate, Allahabad. PW-7 Dr R.P. Mishra, who examined the deceased after admission in hospital, has also stated that Magistrate was informed.44. It is correct that there is no certificate of concerned doctor that at the time of recording her statement, deceased was in fit state of mind to make such an statement, however, it may be seen that PW-7 Dr R.P. Mishra has stated that deceased Saroj Devi was admitted in Sawroop Rani Nehru hospital, Allahabad on 25.09.2008 at 03.30 PM and she was examined by him vide medical examination report exhibit ka-13. He has also stated that Magistrate was also informed. In his cross-examination, PW-7 Dr R.P. Mishra has stated that deceased Saroj Devi was in condition of speaking. There is absolutely nothing in his statement, so as to indicate that deceased was not fit to make an statement. Further dying declaration exhibit ka-15 was recorded on 26.09.2008 and deceased died after two months on 26.11.2008. It is no body's case that during this period of two months she was not in a condition to speak.45. It is correct that the deceased sustained 60% burn injuries, but there is absolutely no circumstance to indicate that she could not have made any statement to the Magistrate. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai V State of Gujarat (1992) 4 SCC 69 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance. In State of M.P. Vs. Dal Singh (2013) 14 SCC 159, the court placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible. In the instant case, as per post-mortem report exhibit ka- 10, the deceased has sustained 60% burns over her body. As stated earlier, PW-7 Dr R.P. Mishra has stated that on 25.09.2008 when deceased Saroj Devi was admitted in hospital about 03.30 PM, she was in speaking condition. It would also be pertinent to mention that defence has not even made any such suggestion to PW-7 Dr R.P. Mishra that deceased was not in condition of making such as statement. Accused-appellant has not taken any such specific plea. No doubt there is no certificate of any doctor that at the time of recording of exhibit ka-15, that the deceased was in a condition to make such an statement, however from attending facts and circumstances, quantum of percentage of burns sustained by deceased and statement of PW-7 Dr R.P. Mishra, it appears that deceased was in fit state of mind to make an statement recorded vide exhibit ka-15. As regards the certificate of doctor regarding condition of injured person to an statement, in case of Laxman v. State of Maharashtra, (2002) 6 SCC 710, it held that medical certification is not a sine qua non for accepting the dying declaration. Similar view has been taken in Jagbir Singh V State (NCT of Delhi) (supra).46. We are not oblivious of the fact that defence could not get an opportunity to cross-examine the Magistrate, who recorded dying declaration exhibit ka-15, as the said Magistrate Sri Sudhir Kumar Mishra has passed away, however, so far the question of recording of dying declaration is concerned, it stand proved by evidence that exhibit ka-15 was recorded by Sri Sudhir Kumar Mishra, the then Additional City Magistarte , Allahabad. As stated earlier in this regard, the statement of PW 9 Subha Mishra finds corroboration from evidence of PW-8 ASP Gyan Prakash Mishra as well as PW-7 Dr R. P. Mishra. Here it would also be pertinent to mention that defence has not put forward any such case that no dying declaration of deceased was recorded at all. In these peculiar facts and circumstances of the case, the dying declaration exhibit ka-15 can not be thrown away merely on the ground that defence could not get opportunity to cross-examine the author of this document. No doubt the statement of concerned Magistrate was desirable, particularly on point whether the deceased was in fit state of mind to make such an statement, but it is not the case that his evidence has been withheld, rather he could not be examined as he has passed away. As stated earlier, it stand proved that the dying declaration exhibit ka-15 was recorded by said Sri Sudhir Kumar Mishra, the then Additional City Magistarte, Allahabad. The entire facts and circumstances indicate that the deceased was in fit state of mind to make such an statement. As stated earlier she has sustained only 60% burns and that she died after two months of the incident and there is evidence of PW 7 that deceased in condition of talking. In view of these facts and circumstances, it could not be said that case of accused-appellant is prejudiced on account of non-examination of Sri Sudhir Kumar Mishra, the then Additional City Magistarte , Allahabad, and thus, the dying declaration exhibit ka-15 can not be doubted merely on the ground that its author could not be examined. However, in these peculiar facts and circumstances, particularly considering the fact that the Magistrate, who recorded this dying declaration could not be examined, before acting upon this dying declaration, its corroboration would be desirable. It would also be necessary to see whether it is reconcilable and consistent with alleged oral dying declaration made by deceased to PW-1 Veer Singh.47. As stated earlier, regarding oral dying declaration allegedly made to PW 1 Veer Singh, case of prosecution is that on 25.09.2008 after receipt of information regarding the incident, PW 1 Veer Singh along with his family members reached at her matrimonial home and found that deceased was lying in burned conditions. He took the deceased to Chayal Primary Health Center and from there she was referred to Swaroop Rani Nehru Hopital, Allahabad and accordingly she was admitted in that hospital. PW-1 Veer Singh has further stated that while taking his daughter (deceased) to hospital, she has told him that her husband Dharam Das and his family members have burnt her by pouring kerosene. Though as per PW 1 Veer Singh, besides the accused-appellant, his other family members were also involved in the incident, whereas as per dying declaration exhibit ka-15 only accused-appellant Dharam Das has put the deceased on fire but so far as the involvement of accused-appellant Dharam Das is concerned, there is no inconsistency or contradiction between the two dying declarations. The evidence of PW 1 Veer Singh so far as it relates to involvement of accused-appellant Dharam Das, is quite convincing and cogent. The alleged dying declaration could not be doubted merely on the ground that this fact was not mentioned in the first information report. Here it may be stated that if one finds his daughter in such conditions like in state of suffering such burns, its quite natural for him that he would inquire from her as to how this incident took place. PW-1 Veer Singh has been subjected to cross-examination, but so far the involvement of accused-appellant is concerned, no such fact could be shown so as affect his deposition adversely. So far the involvement of accused-appellant Dharam Das is concerned, no material contradiction or infirmity could be shown in evidence of PW-1 Veer Singh. As the said dying declaration was not made in hospital, thus, it is only the statement of PW-1 Veer Singh, which is material to consider whether she was in a fit state of mind to make such statement. At the cost of repetition it may be stated that deceased has suffered only 60% burns and that she has died after about two months of said incident, which indicate that deceased was in fit state of mind to make such statement. PW-7 Dr. R.P. Mishra, who has examined the deceased when she was admitted in hospital, has also stated that deceased was talking condition. In fact there is absolutely nothing to indicate that deceased was not in fit state of mind to make such statement.Thus, it may be seen so far the involvement of accused-appellant is concerned the oral dying declaration of deceased made to her father PW-1 Veer Singh is consistent with dying declaration exhibit ka-15.48. At this stage it may be stated that version of accused-appellant is that on 24.09.2008 deceased has suffered burn injuries while preparing food. It was alleged that he has tried to save her and in that process, he has also suffered burn injuries and thereafter deceased was admitted by him in Priya Hospital on 24.09.2008 but on 25.09.2008 her family members came and they forcibly admitted her in Swaroop Rani Nehru Hospital and a false report was lodged.49. In this connection it may be stated that PW-3 Surender Bahadur Singh, Naib Tahsildar, who conducted inquest proceedings, has not spoken about any such fact which may support the alleged version of accused-appellant. Similarly PW-6 S.I. Rampal Chaudhary, the first investigating officer, has inspected the spot but there is nothing to indicate that he did find any such evidence so as to indicate that deceased suffered burns accidentally while preparing food. In site plan the position of kitchen has not been shown. In fact the version of accused-appellant that deceased suffered burns accidentally while preparing food is quite vague. He has not even specified whether the deceased was making food at LPG gas burner or kerosene stove or on some electric heater or on earthen stove. In his statement under section 313 Cr.P.C., accused-appellant has not even stated the time of alleged incident. In fact at the spot, no such circumstance could be shown, which may support the version of accused-appellant. No such tool or equipment could be seized at spot so as to support the claim of accused-appellant. It is correct that DW-1 Dr. Kaushlesh Dwivedi has stated that on 24.09.2008 at about 11:30 pm one Saroj Devi was brought at Priya Hospital Kandhaipur, Dhoomanganj, Allahabad in burnt condition and that Dharam Das was also suffering from some burn injuries and that they were admitted in his hospital but on the next day, Saroj Devi was taken away by her family members from his hospital whereas Dharam Das remained admitted there for two days, but so far the admission of deceased in said hospital is concerned, his statement does not appears convincing and reliable. As per PW-1 Veer Singh, after receipt of information when he along with other family members reached at the house of in-law's of deceased, she was lying there in burned conditions. His evidence further shows that he first took the deceased to PHC Chayal and there as she was referred to SRN Hospital thus he admitted her in SRN hospital. PW-7, who examined the deceased at SRN hospital, has not spoken any such thing that before admission, deceased was provided any treatment at said hospital. Deceased has also not spoken any such fact in her dying declarations. It may also be observed that if the deceased has suffered burns accidentally and accused-appellant has admitted her in said Priya hospital on the night of 24.09.2008, it is not clear that why he did not inform her parents or police. Merely because the accused-appellant has suffered some minor burn injuries, it would not ipso facto show that he suffered burn injuries while saving the deceased from accidental burns. In such cases the offenders of dowry death often try to give an impression that to be a suicidal or accidental death, but it is always the bride who meets with the accident while cooking or doing household work. In the present case the conspicuous absence of any such specific version that at what time and in which manner or specific details as to by which type of burner deceased suffered burns while preparing food, coupled with absence of any seizure of such article, makes version of accused-appellant doubtful. Further, there is clear and cogent statement of PW-1 Veer Singh that on 25.09.2008 when he reached at spot, deceased was lying there in burnt condition and has taken her to hospital. Considering entire evidence, the version of accused-appellant does not inspire confidence and the same has to be discarded.50. Upon close scrutiny of evidence, so far involvement of accused-appellant is concerned, it appears that the said dying declarations contain the truthful version of the occurrence which narrates the circumstances leading to the death of deceased Saroj Devi. The fact that deceased herself has given clean chit to other family members of accused-appellant, also indicates dying declaration contains truthful version of occurrence as stated by the deceased. This fact assumes significance in view of the fact that version of PW-1 Veer Singh and PW-2 Krishna Devi, who are parents of deceased, is that all the accused persons including other family members of appellant were involved in the incident, whereas in dying declaration exhibit ka-15 deceased has given clean chit to family members of accused-appellant. As stated earlier, though the trial court has not considered the oral dying declaration made to PW-1 Veer Singh and placed reliance on dying declaration exhibit ka-15, but it is apparent from record that, so far involvement of accused-appellant is concerned, the oral dying declaration made to PW-1 Veer Singh appears reliable. The dying declaration exhibit ka-15 is consistent with said oral dying declaration as both the dying declarations indicate involvement of accused-appellant in incident.51. Further, it is not so that conviction of accused-appellant is based only on dying declaration of deceased, but there is evidence of PW-1 Veer Singh and PW-2 Krishna Devi. As stated earlier they have made statements to the effect that deceased was being harassed for dowry since after marriage. Here it may be stated that it is not disputed that marriage of deceased with accused-appellant was solemnised on 20.02.2008 i.e. only 7 months prior to the incident and that deceased suffered burn injuries on 25.09.2008 in said incident. It is also not disputed that she died of these burns injuries after two months of incident and thus death of deceased was ''otherwise than under normal circumstances'' which occurred within 7 years of her marriage.52. The evidence of PW-1 Veer Singh PW-2 Krishna Devi, makes it clear that deceased was being harassed on account of demand of a buffalo and cash of Rs.40,000/. In this regard the statement of PW-1 Veer Singh is consistent with FIR and his previous statement and it is amply corroborated by PW-2 Krishna Devi. It is correct that these witnesses have also stated that besides the accused-appellant, his family members namely Dharam Veer, Kailasha Devi and Phaguhar were also involved in the incident, whereas deceased in her statement has given clean chit to them, but it is common knowledge that in such cases there is tendency in family members of victim to implicate the family members of husband. However, considering their evidence carefully, it appears that their statements can safely be believed so far as involvement of accused-appellant Dharam Das is concerned. So far the involvement of accused-appellant is concerned, there are no reasons to disbelieve their statements. Both the witnesses have been subjected to cross-examination, but no such fact could emerge so as to create any doubt regarding involvement of accused-appellant in the incident. No material contradiction or inconsistency could be shown in their statements. Thus, from the evidence on record, the prosecution has proved that the deceased was being harassed and treated with cruelty in relation to demand of dowry ie demand of a buffalo and cash of Rs. 40,000/.53. At this stage it would be pertinent of mention that Section 113-B of the Evidence Act mandates the Court has to raise the statutory presumption in a case where it is shown that soon before her death such woman has been subjected to cruelty or harassment for or in connection with any demand of dowry.54. In case of Banshi Lal Vs. State of Haryana, AIR 2011 SC 691, it has held that the court has to analyse the facts and circumstances as leading to death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. Meaning thereby cruelty or harassment with regard to demand of dowry soon before death is a crucial ingredient to be proved by prosecution before attracting any provisions of section 304-B I.P.C.55. In Mustafa Shahdal Shaikh Vs. State of Maharashtra, AIR 2013 SC 851 it was observed by the Hon'ble Apex Court that "soon before death" means interval between cruelty and death should not be much. There must be existence of a proximate and live links between the effect or cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. Similarly in Kaliyaperumal Vs. State of Tamil Nadu, AIR 2003 SC 3828 it was held that that the expression 'Soon before her death" used in the substantive section 304-B I.P.C. and section 113-B of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression "soon before hear death" is not defined. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.56. The Hon'ble Supreme Court in Prem Kumar vs. State of Rajasthan 2009 (3) SCC 726 held:''Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with, any demand for dowry. (4) Such cruelty or harassment was soon before her death.57. It was further held that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The expression ''soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case the aforesaid presumption operates. ''Soon before' is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It was further observed that it would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act.58. In the case in hand, as pointed out earlier, both PW-1 Veer Singh and PW 2 have made consistent statements that after marriage of deceased, she was continuously being harassed on account of dowry demand of a buffalo and cash of Rs.40,000/. PW-1 Veer Singh has stated that after 6-7 days of marriage, deceased visited his house after vidai and told that her husband and his family members were harassing for demand of dowry and they were not allowing her even to take proper food and other necessary apparels. She has told that accused persons were making demand of a buffalo and Rs.40,000/. However, after and a half month, deceased was again sent to her matrimonial home. After that she used to tell on phone that accused persons were harassing for said demand. PW-1 Veer Singh has stated that he also used to visit the matrimonial home of deceased and that she used to complain about the harassment on account of dowry demand. In his cross-examination, PW-1 Veer Singh stated that after her marriage, deceased visited his house for three times and after that on 25.09.2008, he was informed about the incident. The version of PW-1 Veer Singh has been corroborated by PW-2 Smt. Krishna Devi. PW-2 Krishna Devi also stated that even when third time her daughter Saroj Devi came from her matrimonial home, she has told that she was being continuously harassed and that accused persons were not allowing her even to take proper food and that her husband Dharam Das used to beat her after consuming liquor. However, deceased was again sent back to her matrimonial home and thereafter, on day of incident, they were informed that accused persons have burnt the deceased. The evidence indicates that since after her marriage, deceased was continuously being harassed for fulfilment of alleged demand of dowry. The incident took place within about 7 months of marriage and during this period of 7 months deceased has visited her paternal home for three times and on every occasion she always told her family members that she was being harassed in connection with said dowry demand. During this period of 7 months, besides the three visits of deceased, PW-1 Veer Singh also used to visit her matrimonial home house. There are no reasons to doubt this evidence. The accused-appellant has also not taken any such specific plea that deceased did not visit her maternal home or that PW-1 Veer Singh did not visit his house. Thus, there is evidence that within a short span of 7 months of matrimonial life of deceased, she visited her parental house for three times and whenever deceased met her father or brother, she used to tell about the harassment being meted out to her on account of demand of buffalo and cash of Rs. 40,000/ by the accused-appellant. All these facts clearly imply that the deceased was continuously being harassed for demand dowry and there is absolutely nothing to indicate that this cruelty and harassment has ever ceased till the incident. One important aspect of the matter is that there is evidence in the form of dying declaration of deceased that it was the accused-appellant Dharam Das, who has put the deceased on fire and she died after two months of said incident of burn injuries sustained by her in alleged incident. Though accused-appellant was not charged for offence under section 302 IPC, but the fact that she was set ablaze by the accused-appellant, also goes to show that deceased was being subjected to cruelty till the incident of burning and this cruelty clearly covers ''cruelty soon before her death''. Considering entire evidence, it is manifest there is a proximate connection between the demand of dowry and act of cruelty / harassment meted out to deceased and the death of deceased. The interval between cruelty and death of deceased is not much and such gap has to be examined in the attending facts and circumstances of the matter. There is a proximate and live link between the effect of cruelty based on dowry demand and the death of deceased. As observed by the Hon'ble Apex Court, the determination of the period which can come within the term "soon before" is to be determined by courts, depending upon facts and circumstances of each case and it normally imply that the interval should not be much between the concerned cruelty or harassment and effect of cruelty based on dowry demand and the concerned death.59. Considering the evidence in light of peculiar facts and circumstances of the instant case as well as the position of law, it is established that the deceased was continuously being harassed on account of dowry demand of a buffalo and cash of Rs.40,000/ and the accused-appellant continued the harassment and ill treatment to the deceased till the incident of her burning. As noticed earlier there is absolutely nothing to indicate that this cruelty and harassment has ever ceased till the incident. Considering entire evidence, it is clear that there is proximate and live link between the effect or cruelty meted out to the deceased based on dowry demand and the death of deceased. Thus, it established that deceased was subjected to cruelty or harassment by her husband / accused-appellant in connection with demand for dowry and that such cruelty or harassment was soon before her death. In view of this evidence, the presumption enshrined under section 113-B Evidence Act can safely be raised against accused-appellant appellant.60. Applying the presumption enshrined under section 113-B Evidence Act, once the initial burden of showing that the woman was subject to cruelty or harassment for or in connection with any demand of dowry soon before her death is discharged by the prosecution, the Court has to presume that such person has caused a dowry death. As stated earlier, from evidence on record it is established that deceased Saroj Devi was subjected to cruelty or harassment by her husband/appellant in connection with the demand of dowry and that such cruelty and harassment was soon before her death. It is not disputed that deceased suffered death otherwise than under normal circumstances within seven years of her marriage. Here it may be stated that for sake of argument even if the said dying declarations of deceased are excluded from consideration, the evidence of PW-1 Veer Singh and PW 2 Krishna Devi is sufficient to base conviction of accused-appellant. Thus, we reach to the inescapable conclusion that the conviction of accused-appellant under section 498-A and 304-B IPC is based on evidence and accordingly conviction of accused-appellant for said charges is hereby affirmed.61. So far conviction of accused-appellant under section 3 and 4 D.P. Act is concerned, the essence of evidence against accused-appellant is that after his marriage with deceased Saroj Devi, he used to demand a buffalo and cash of Rs 40,000/ from deceased as additional dowry and he continuously harassed the deceased on account of said demand since after the marriage. At this stage it would be appropriate to peruse the provisions of section 3 and 4 of D.P. Act, which read as under:''3, Penalty for giving or taking dowry.--[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable [with imprisonment for a term which shall not be less than [five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]:Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than [five years]. [(2) Nothing in sub-section (1) shall apply to, or in relation to,-- (a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act; (b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.] Section 4. Penalty for demanding dowry.--If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]''62. Perusal of section 3 of the D.P. Act shows that it prohibits giving and taking of dowry. In the instant case there is no categorical evidence to satisfy the ingredients of offence punishable under section 3 D.P. Act, rather the mischief of accused-appellant is squirely covered under section 4 D.P. Act. Thus conviction of accused-appellant under section 4 D.P. Act is upheld but the conviction under section 3 D.P. Act is liable to be set aside.63. So far as quantum of sentence is concerned, it was submitted by learned counsel for the appellant that the trial court has awarded maximum sentence ie imprisonment for life, without considering the relevant facts and the sentence awarded to accused-appellant is quite excessive and arbitrary. It was stated that marriage of deceased has taken place 7 months prior of the incident and that the accused-appellant is in jail since last about 11 years as he was never granted bail. It was submitted that ends of justice would met if the sentence of life imprisonment is reduced to the period already under gone by the accused-appellant.64. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of Court to constantly remind itself that right of victim, and be it said, on certain occasions persons aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that Courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to society's cry for justice against the criminal'. [Vice Sumer Singh Vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC 731, M

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.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of Rajasthan, (1996) 2 SCC 175].65. Hon'ble Apex Court in the case of Hem Chand Vs. State of Haryana, [(1994) 6 SCC 727] in para no. 7 of the judgment has held as under:"7. Now coming to the question of sentence, it can be seen that Section 304-B I.P.C., lays down that "Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A reading of Section 304-B IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B I.P.C. also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection With the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied. In the instant case no doubt the prosecution has proved that the deceased died an unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that there is no charge under Section 302 I.P.C. The trial court also noted that there were two sets of medical evidence on the file in respect of the death of the deceased. Dr. Usha Rani, P.W. 6 and Dr. Indu Latit, P.W. 7 gave one opinion. According to them no injury was found on the dead body and that the same was highly decom-posed. On the other hand, Dr. Dalbir Singh, P.W. 13 who also examined the dead body and gave his opinion, deposed that he noticed some injuries at the time of re-post mortem examination. Therefore at the most it can be said that the prosecution proved that it was an unnatural death in which case also Section 304-B I.P.C. would be attracted. But this aspect has certainly to be taken into consideration in balancing the sentence to be awarded to the accused. As a matter of fact, the trial court only found that the death was unnatural and the aspect of cruelty has been established and therefore the offences punishable underSection 304-B and 201 I.P.C. have been established. The High Court in a very short judgment concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances as a result of cruelty meted out to her and therefore an offence underSection 304-B I.P.C. was made out. Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime he himself indulged therein and precipitated in it and that bride killing cases are on the increase and therefore a serious view has to be taken. As mentioned above Section 304-B I.P.C. only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment for life should be in rare cases and not in every case."66. Recently in Criminal Appeal No. 724 OF 2019 Kashmira Devi Versus State of Uttarakhand & Ors, decided on 28.01.2020, Hon'ble Apex Court observed as under:''Having arrived at the above conclusion the quantum of sentence requires consideration. The High Court has awarded life imprisonment to the appellant on being convicted under Section 304B IPC. The minimum sentence provided is seven years but it may extend to imprisonment for life. In fact, this Court in the case of Hem Chand Vs. State of Haryana (1994) 6 SCC 727 has held that while imposing the sentence, awarding extreme punishment of imprisonment for life under Section 304-B IPC should be in rare cases and not in every case.Though the mitigating factor noticed in the said case was different, in the instant case keeping in view the age of the appellant and also the contribution that would be required by her to the family, while husband is also aged and further taking into consideration all other circumstances, the sentence as awarded by the High Court to the appellant herein is liable to be modified.''67. Keeping in view the principles of law laid down in the afore mentioned cases, in the instant case it may be observed that deceased was a young lady aged 20 years and her marriage was solemnised only seven months prior to the incident and that she died of burn injuries within 9 months of her marriage. There is evidence that it was the accused-appellant, who put her on fire and deceased suffered severe burn injuries. Though the trial court did not frame charge under section 302 IPC but the specific role of accused-appellant cannot be ignored. In case of Kailash Kaur Vs State of Punjab (1987) 2 SCC 631, the prosecution case was that the sister-in-law caught hold of the deceased and the mother-in-law poured kerosene oil on her and set her on fire. The Supreme Court observed that "whenever such cases come before the court and offence is brought home to the accused beyond reasonable doubt, it is the duty of the court to deal with it in most severe and strict manner and award the maximum penalty prescribed by the law in order that it may operate as a deterrent to other persons from committing such anti- social crimes. In the present case deceased Saroj Devi suffered incident of burning only 7 months after her marriage. After suffering severe burn injuries, deceased struggled for life for about two months in hospital. It is also established that she was continuously being harassed for dowry since after her marriage and she continued to face this trauma till the incident. It may also be noticed that accused-appellant was also convicted under section 498-A IPC but in its wisdom the learned trial court did not choose to award any sentence on that count. Having regard to the totality of facts and circumstances of the instant case, it appears a case of rare category so as to warrant the maximum sentence i.e. life imprisonment and thus, we find no good reasons to interfere with the sentence awarded to the accused appellant.68. In view of aforesaid conviction of accused-appellant Dharam Das for offences under section 498-A, 304-B IPC and section 4 D.P. Act is upheld. The sentences awarded under section 304-B IPC and section 4 D.P. Act are also upheld. However, conviction and sentence of accused-appellant under Section 3 D.P. Act is set aside. Accused-appellant is stated in custody and he shall serve out the remaining sentence.69. Appeal partly allowed in above terms.70. Let the lower court record be transmitted to the trial Court concerned for its information and compliance.
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