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Hon'ble Raj Beer Singh, J.

Per: Raj Beer Singh, J. for the Bench

1. 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 ¾ 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 ¾ 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.

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).

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."

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.