Head Notes

Dismissing the appeal, the Court

HELD: 1.1 As has been held by the Apex Court in the case of Kunhiabdulla*,

in order to attract application of s.304B IPC, the essential ingredients

are : (1) The death of a woman should be caused by burns or bodily injury

or otherwise than in normal circumstances; (2) such a death should have

occurred within seven years of her marriage; (3) She must have been

subjected to cruelty or harassment by her husband or any relative of her

husband; (4) Such cruelty or harassment should be for or in connection with

demand of dowry; (5) Such cruelty or harassment is shown to have meted out

to the woman soon before her death. [para 16] [1149-E-H; 1150-A]

*Kunhiabdulla Versus State of Kerala 2004 (2 ) SCR853 = 2004 (4) SCC 13

- referred to.

1.2 As generally happens in a crime of dowry death, this case is also based

on circumstantial evidence. As regards ingredients No. 1 and 2, it is an

admitted fact that the deceased, as indicated in the post mortem report,

died otherwise than in normal circumstances, and that the death had

occurred within seven years of her marriage in her `Sasural' in her

bedroom. [para 17] [1150-B-C]

1.3 As regards ingredients No. 3, 4 and 5, the relevant testimony is

contained in the statements of the deceasd's father PW 1 and PW 2 (son-in

law of PW-1). Their testimony is quite credible regarding the illegal

demand of a Maruti Car in dowry by the two accused, namely, the husband and

the mother-in-law of the deceased, since after six months of the marriage

and that they subjected her to harassment, maltreatment and humiliation on

non-fulfilment of the said demand. It goes without saying that cruelty or

harassment may not only be physical but also mental. [para 18 and 20]

[1150-E; 1152-A-C]

1.4 As has been held by this Court in Kunhiabdullah, `soon before' is a

relative term and it would depend upon the circumstances of each case and

no strait-jacket formula can be laid down as to what would constitute a

period of `soon before the occurrence'. It 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 u/s 113-B of the Evidence Act. The instant case fully answers

the test of `soon before'. There is the testimony of demand of Maruti Car

being pressed by the two accused persons after about six months of the

marriage of the deceased (which took place about three years before the

incident) and of her being pestered, nagged, tortured and maltreated on

non-fulfilment of the said demand which was conveyed by her to her parents

from time to time on her visits to her parental home and on telephone.

Things had reached to such a pass that on getting a message from her about

three months before the incident, PW 1 accompanied by PW 2 had to go to her

`Sasural' in an attempt to dissuade the two accused from pressing such

demand, but they (the two accused) humiliated and turned them out of the

house with the command not to enter their house again without meeting the

demand of a Maruti Car. PW-1did not take any action on the consolation

offered by the father-in-law of his daughter and also on the advice of his

daughter which was quite natural. It, however, cannot be taken to mean that

the demand made by the two accused persons had subsided or was given up by

them. It can justifiably be inferred from what happened subsequently that

they continued to torture the unfortunate lady because of non-fulfilment of

the demand of Maruti Car. The test of `soon before' is satisfied in the

facts, evidence and circumstances of the instant case. [para 24 and 26]

[1153-G-H; 1154-F-H; 1155-A-D]

Kunhiabdulla Versus State of Kerala 2004 (2 ) SCR853 = 2004 (4) SCC 13 -

distinguished.

1.5 Indeed, the prosecution could not be expected to bring forth any other

evidence as to the persistent demand of dowry in the form of Maruti Car by

the two accused after about six months of the marriage and maltreatment,

harassment and torture heaped upon the deceased by the two accused on non-

fulfilment of the said demand. The evidence on this aspect of the matter as

contained in the statements of PW 1 and PW 2 has the natural aura of the

truth. [para 22] [1153-B-C]

1.6 Thus, ingredients No. 3, 4 and 5 for attraction of s. 304B IPC, are

also established by satisfactory evidence adduced by the prosecution in the

form of the testimony of PW 1 corroborated by PW 2. [para 27] [1155-E]

1.7 There is an important feature of the case. Only the husband and mother-

in-law of the deceased have been accused of the offences in question.

Besides them, there were three other family members i.e., the father of

accused No. 1 and husband of accused No. 2 and two daughters. PW 1 has

described father-in-law of the deceased as a gentleman. He has all the

respect and regard for him. Even when he had been humiliated by the two

accused about three months before the incident on expressing his inability

to meet their demand of Maruti Car in dowry, he (PW1) had gone to him at

his employment place in State Bank and had not taken any action on the

consolation offered by him. He mentioned this fact in the FIR too. The

circumstance that only the husband and mother-in-law of the deceased have

been made accused of the offence, sparing the other three, is an indication

that father of the deceased has not acted out of malice, anger or to wreak

vengeance. [para 22] [1152-F-H; 1153-A-C]

1.8 The recovery memoes Ex.Ka-10 (with regard to blood and blood stained

bindia) and Ka-11 (regarding broken bangles) were not challenged in the

cross-examination of PW 5, (the Tehsildar Magistrate) or PW 6 (the SI), who

prepared them. These recoveries amply indicate that the deceased had been

subjected to violence in her bedroom and she had succeeded in coming out on

the `Chhajja' (balcony) to save herself. Not only this, the presence of

burnt cordless phone stuck in the arm and the burnt wire of phone with the

dead body indicates that she had tried to contact someone on phone, but in

vain. There is nothing to cast a doubt on the said recoveries. [para 30]

[1156-F-H; 1157-A-B]

1.9 The theory of suicide put forth by the defence completely falls through

on careful analysis of the evidence and the attending circumstances. Two

different types of injuries found on the dead body of the deceased, i.e.,

the ligature mark of large dimension and the body being badly burnt because

of the ante mortem burns with smell of kerosene coming out of the body,

completely rule out the theory of suicide. A half-burnt piece of cloth with

a knot was also found tied around the neck. It is also to be taken note of

that her body was found by the Investigating Officer in the lonely corner

of the bedroom where she was rendered immobile and in a helpless state.

[para 34] [1158-F-H; 1159-A-C]

1.10 This Court records with dismay that the trial judge has taken it to be

a ground against the prosecution that the knot found around the neck of the

deceased was not produced before the court. It is obvious that he

completely misinterpreted the matter relating to the knot and took it as a

circumstance against the prosecution. While conducting the post mortem, the

knot found around the neck of the deceased was untied and removed so as to

facilitate the post mortem. Therefore, there could be no question of the

knot bring produced before the court. [para 37] [1160-B-E]

1.11 On a close scrutiny and careful appreciation of the evidence, this

Court is of the firm view that the trial judge wrongly accepted the plea of

alibi put forth by the two accused persons to get away from the

consequences of the serious crime committed by them. Their conduct also

voluminously spoke against them. As a matter of fact, only these two

accused had an opportunity to commit the offence. The father-in-law of the

deceased having gone to the place of his employment and the two daughters,

including DW 1, having gone to their educational institution, the two

accused persons only (husband and mother-in-law of the deceased) had the

opportunity to commit this crime inside the bedroom of the deceased. The

manner in which the deceased was done to death, i.e., by first

strangulating her and then setting her afire, needed at least two persons,

because she was also a young lady aged about 24 years. A single person

could not have possibly overpowered her to strangulate her and to set her

afire. As a natural instinct, she was bound to offer resistance and having

regard to the two types of the injuries found on her person at the time of

post mortem, it was the handiwork of at least two persons, who undoubtedly

were the husband and the mother-in-law. The conduct of the mother-in-law of

the deceased was that she, in order to misguide the machinery of law

through false plea of alibi, lodged a false information at the Police

Station at 1.10 P.M. that her daughter-in-law had committed suicide. She

had taken a false excuse to support her baseless plea of alibi of herself

as also her son, the husband of the deceased. [para 38] [1160-E-H; 1161-A-

D-G]

1.12 The interested testimony of DW 1 also cannot be believed that her

brother accused No. 1, the husband of the deceased, had gone to his shop at

about 8 P.M. After committing the crime, the two accused vanished from the

scene, but before doing that, one of them, (the -mother-in-law of the

deceased) lodged a false report at the police station that her daugther-in-

law had committed suicide. It is in the testimony of PW 7

(C.O/Investigating Officer) that the accused-husband surrendered in court

on 7.11.2000 and the mother-in-law on 13.11.2000. Earlier thereto, the

attempts to find and arrest them turned to be futile. None of the two

accused is witness of the inquest report or Fards. Absconding by both of

them after the incident cannot be termed to be normal conduct of innocent

persons. The report by the accused was given at the Police Station at 1.10

P.M. on 3.11.2000. It was the outcome of deliberation and consultation with

legal experts who had already gathered at the scene of occurrence along

with Advocate-uncle of the accused, DW 2 - Advocate, and few other lawyers;

whereas from the testimony of DW 2, it is evident that the news of the

death of the victim was received in the District court at 11.30 A.M.

itself, i.e., much before the lodging of the report by the accused. [para

39] [1161-H; 1162-A-F]

1.13 The presumption of s.113-B of the Evidence Act is attracted in this

case and the facts and circumstances of the case make it abundantly clear

that the defence could not displace the said presumption. The culpability

of the two accused in committing the crime is established to the hilt by

the facts and circumstances proved by the prosecution. They undoubtedly are

the authors of this crime. The irresistible conclusion is the demand of

Maruti Car raised by the two accused after about six months of the marriage

persisted as it was not settled by the father of the deceased by supplying

the same. The prosecution has successfully proved the persistent demand of

Maruti Car as a part of dowry by the two accused and continuous cruelty and

harassment heaped upon the deceased by them over this score. The accused

are established to have committed the offences punishable u/ss. 498-A and

304 B IPC and u/s 4 of Dowry Prohibition Act and the findings of the High

Court are correct. [para 41 and 43] [1163-C-F; 1164-E-F]

2. Crimes against women are not ordinary crimes committed in a fit of anger

or for property. They are social crimes. They disrupt the entire social

fabric. Hence, they call for harsh punishment. In the instant case, as has

been established from the medical evidence, the death of the victim was

caused by strangulation and then by burning. In fact, it was a case u/s 302

IPC and death sentence should have been imposed in such a case, but since

no charge u/s 302 IPC was levelled, this Court cannot do so, otherwise,

such cases of bride burning fall in the category of rarest of rare cases,

and deserve death sentence. Although bride burning or bride hanging cases

have become common in our country, the expression "rarest of rare" as

referred to in Bachan Singh's case* does not mean that the act is uncommon,

it means that the act is brutal and barbaric. Bride killing is certainly

barbaric. [para 7-10 and 12] [1147-A-G; 1148-D]

*Bachan Singh Vs. State of Punjab AIR 1980 SC 898 - referred to.

Case Law Reference:

AIR 1980 SC 898 referred to para 8

2004 (2) SCR853 distinguished para 16 and 24

CRIMINAL APPELLATE JURISDICTION : CRIMINAL APPEAL No. 1168 of 2005.

From the Judgment & Order dated 12.07.2005 of the High Court of Judicature

at Allahabad in State Appeal No. 5570 of 2003.

Indu Malhotra, Rajesh and Vivek Jain for the Appellants.

K.T.S. Tulsi, Shail Kr. Dwivedi, AAG, R.K. Gupta, Pradeep Misra, Suraj

Singh, Vandana Mishra, Anurag Dubey, Meenesh Dube, Ravinder Singh and S.R.

Setia for the Respondent.

Subject

PENAL CODE, 1860:

ss. 304-B and 498-A IPC and s. 4 of Dowry Prohibition Act - Dowry death -

Circumstantial evidence - Bride died of strangulation and burn injuries in

her matrimonial home - Husband and mother-in-law of deceased charged with

the offences - Acquittal by trial court - Conviction by High Court - Held:

Trial judge recorded acquittal adopting a superfluous approach without in-

depth analysis of the evidence and circumstances established on record - He

proceeded on wrong premise and irrelevant considerations -The ingredients

of s. 304-B have been established - The presumption u/s 113-B of Evidence

Act is attracted and the accused could not displace the same - The

prosecution has established that the accused committed the offences -

Findings of High Court upheld - Dowry Prohibition Act, 1961 - s. 4 -

Evidence - Circumstantial Evidence - Evidence Act, 1872 - s. 113-B.

s. 304-B - Ingredients - Explained - Expression `soon before her death' -

Connotation of - Proximity Test.

Administration of criminal justice - Framing of appropriate charge -Dowry

death - Bride strangulated and burnt to death by her husband and mother-in-

law as their demand for dowry was not fulfilled - Held: It was a case u/s

302 but no charge under that section was framed - Such cases of bride

burning fall in the category of rarest of rare cases and, therefore,

deserve death sentence - However, conviction and sentence u/ss 304-B and

498-A upheld - Penal Code, 1860 - ss. 304-B and 498-A - Code of Criminal

Procedure, 1973 - Sentence/Sentencing.

Words and Phrases:

Expressions `soon before her death' as occurring in s.304-B IPC; and

`rarest of rare cases' in the context of dowry deaths - Connotation of.

A bride, aged about 24 years, died of strangulation and burn injuries in

her matrimonial home, within three years of her marriage. The father of the

deceased stated in the FIR that dowry was being demanded from him and it

was insisted that a Maruti car be part of the dowry. The trial court

acquitted the accused, namely, the husband and the mother-in-law of the

deceased, but the High Court convicted them u/ss 304-B and 498-A IPC and

s.4 of the Dowry Prohibition Act, 1961. Aggrieved, the accused filed the

appeal.

Judgement

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 1168 OF 2005

SATYA NARAYAN TIWARI @ JOLLY & ANR. Appellant (s)

VERSUS

STATE OF U.P. Respondent(s)

O R D E R

Heard learned counsel for the parties.

The hallmark of a healthy society is the respect it shows to women. Indian society has become a sick society. This is evident from the large number of cases coming up in this Court (and also in almost all courts in the country) in which young women are being killed by their husbands or by

their in-laws by pouring kerosene on them and setting them on fire or by hanging/strangulating them. What is the level of civilsation of a society in which a large number of women are treated in this horrendous and barbaric manner? What has our society become - this is illustrated by this case.

This Appeal has been filed against the impugned

judgment and order of the Allahabad High Court dated

12.07.2005.

The facts of the case are that Geeta (deceased) was married to the appellant No. 1 Satya Narayan Tiwari @ Jolly

on 9th December 1997. On 03.11.2000 an FIR was lodged by

the father of the deceased Surya Kant Dixit alleging that

dowry was being demanded from him and the accused was

insisting that a Maruti car be part of the dowry. He

further stated that three months before the date of the

incident the first informant along with his relative went

to the house of the accused and explained his financial

difficulty in giving the Maruti car to the accused but they

were insulted by the accused and were told to get out.

On 03.11.2000 at about 12 noon the first informant

received information on telephone that his daughter had

died. The FIR was lodged as stated above and after

investigation a charge sheet was filed. The appellants -

the husband and mother-in-law of the deceased - were

acquitted by the trial court but the High Court convicted

them under Sections 304B, 498-A IPC and Section 4 of the

Dowry Prohibition Act and awarded life sentence under

Section 304B IPC, 3 years rigorous imprisonment under

Section 498A, and six months rigorous imprisonment under

Section 4 of the Dowry Prohibition Act. The sentences were

to run concurrently.

2

We have carefully perused the impugned judgment and

order of the High Court and the judgment of the trial court

and other evidence on record. We see no reason to disagree

with the judgment and order of the High Court convicting

the appellants. In fact, it was really a case under Section 302 IPC and death sentence should have been imposed in such a case, but since no charge under Section 302 IPC was levelled, we cannot do so, otherwise, such cases of bride burning, in our opinion, fall in the category of rarest of rare cases, and hence deserve death sentence.

Although bride burning or bride hanging cases have become common in our country, in our opinion, the expression "rarest of rare" as referred to in Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 does not mean that the act is uncommon, it means that the act is brutal and barbaric. Bride killing is certainly barbaric.

3. Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often

demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialization of our society, and lust for money which induces people to commit murder of the

wife. The time has come when we have to stamp out this evil from our society, with an iron hand.

In the present case, there was a post mortem done by a

committee of three Doctors. We have perused the post

mortem report. In that report ante mortem injuries were

mentioned as under :-

"1. Ligature mark around the neck, 31x7 cms.

Base slightly grooved with dark red. On cut

section-tissue ecchymosed a tracheal ring

compresses. Clotted blood under soft tissue.

2. Superficial to deep burn all over body.

Blistered at places present. On cut section serus

fluid present."

The cause of the death in that report was mentioned in

the following terms :-

"Opinion as to cause and manner of death : In

my opinion cause of death is suffocation with

shock as a result of strangulation with

simultaneous A/M burn."

Thus, in this case the death of the deceased Geeta was

caused by strangulation and then by burning. It is

impossible for us to believe that this was a case of

suicide. It was a clear case of murder and hence charge

under Section 302 IPC should have been levelled against the

4

appellants but surprisingly enough that has not been done

in this case.

On the evidence on record which we are repeating here

again, we see no reason to disagree with the view taken by

the High Court.

The deceased was aged about 24 years and about = day

had passed since she died when post mortem was done. She

was of average build. Eyes and mouth were partly open.

Tongue was between the teeth. The body had pugilistic

appearance. Smell of kerosene was present. Rigor mortis was

also present. There was a half burnt cloth around the neck

with knot half burnt. Half burnt bed sheet and other

clothes as also a half burnt wire mingled with burnt

clothes were found. A burnt cordless phone was also found.

At the trial, the prosecution examined seven witnesses.

Surya Kant Dixit PW 1 was the father of the deceased and

maker of the F.I.R. who as well as his relative Jaideo

Awasthi PW 2 gave evidence about the demand of Maruti Car

by the accused respondents since after six months of

marriage and about the demand of Maruti Car being repeated

and pressed by both the accused, when both of them had gone

to the Sasural of the deceased and had been turned out by

the two accused after being insulted on their expressing

inability to meet the demand of a Maruti Car.

Dr. R.K. Singh PW 3 stated that he was included in the

panel of doctors conducting the autopsy on the dead body of

5

the deceased and he proved the post mortem report. Head

Constable Mohar Pal Singh PW 4 had scribed the check report

on the basis of the FIR lodged by Surya Kant Dixit PW 1.

Shir Bahadur Singh PW 5, Tehsildar of Tehsil Farrukhabad

prepared the inquest report of the dead body of the

deceased and other related papers. S.I. Ghanshyam Gaur PW 6

had collected bloodstains etc., from the spot at the

instance of Shiv Bahadur Singh PW 5 and Circle Officer

D.P.N. Pandey PW 7 was Investigating Officer of the case.

The defence also examined three witnesses. Vidushi Tiwari

DW 1 was the real sister of the husband of the deceased.

Devendra Misra DW 2 and Sushil Kumar Misra DW 3 were

non-family members of the two accused.

As held by the Apex Court in the case of Kunhiabdulla

Versus State of Kerala, 2004 (4) SCC 13, in order to

attract application of Section 304B IPC, the essential

ingredients are as follows :

1. The death of a woman should be caused by burns or

bodily injury or otherwise than in normal

circumstances;

2. such a death should have occurred within seven years

of her marriage;

3. She must have been subjected to cruelty or harassment

by her husband or any relative of her husband;

4. Such cruelty or harassment should be for or in

6

connection with demand of dowry;

5. Such cruelty or harassment is shown to have meted out

to the woman soon before her death.

As generally happens in a crime of dowry death, this

case is also based on circumstantial evidence. As regards

ingredients No. 1 and 2 of a crime of dowry death detailed

above, it is an admitted fact that the deceased Geeta died

otherwise than in normal circumstances vide her post mortem

report and that the death had occurred within seven years

of her marriage in her Sasural in the bedroom. As per the

prosecution case, she had been married to the accused

respondent No. 1- Satya Narain Tewari alias Jolly about

three years before this incident occurring on 3.11.2000.

Even Vidushi Tiwari DW 1, sister of the husband of the

deceased in paragraph 2 of her statement said that the

deceased Geeta was married to her brother Satya Narain

Tiwari alias Jolly on 9.12.1997. Thus, her unnatural death

in her Sasural occurred within three years of her marriage.

7

As regards ingredients No. 3, 4 and 5, the relevant

testimony is contained in the statement of the deceasd's

father Surya Kant Dixit PW 1 and Jaideo Awasthi PW 2 (son-

in law of Bua of Surya Kant). Both of them have deposed

about the persistent demand of Maruti Car in dowry by the

accused persons (husband and mother-in-law of the deceased)

since after six months of the marriage and

harassment/maltreatment of the deceased over the score of

non-fulfilment of the said demand. The gist of the

testimony of Surya Kant Dixit PW 1 was that he had

performed a decent marriage spending Rs. 4 Lacs giving

household goods in dowry but after six months of the

marriage, the two accused started torturing his daughter

Geeta pressing for the demand of a Maruti Car. On her

visits to her parental house, she (deceased) used to

narrate to him (this witness) her torture and maltreatment.

She had also informed him in this behalf on telephone.

About three months before the incident, he and Jaideo

Awasthi had gone to Geeta's Sasural at Farrukhabad on

getting message from Geeta about the atrocities of the two

accused heaped upon her rendering her life miserable

because of non-fulfilment of the demand of Maruti Car.

Both the accused were there at their home at Farrukhabad

and repeated the demand of Maruti car. On his expressing

inability to meet this demand, he and Jaideo Awasthi were

8

insulted and humiliated and turned out of the house. Both

the accused told them not to visit their house again

without meeting their demand of a Maruti Car. Surya Kant

Dixit PW 1 then went to Geeeta's father-in-law at the place

of his employment-State Bank because he was a gentleman.

He apprised him of the conduct of his wife and son

(accused) pressing the demand of Maruti Car. He, however,

offered consolation, Geeta, daughter of Surya Kant Dixit DW

1, also advised him not to take any action and he went

away. The victim might have thought that making of FIR by

her father at that juncture would ruin her matrimonial life

and so she advised him not to take any legal step at that

time.

Then he received a telephonic message from someone at

about 12 O'clock in the noon on the day of incident about

the death of his daughter Geeta in her Sasural at

Farrukhabad, he at once rushed from Mainpuri to Farrukhabad

covering a distance of about 80-85 km. Reaching the

Sasural of his daughter he found her dead in the bedroom of

the first floor of the house.

Jaideo Awasthi PW 2 has corroborated the statement of

Surya Kant Dixit PW 1 in all the essential particulars. He

had accompanied Surya Kant Dixit PW 1 about three months

before the incident to the Sasural of Geeta as related

above while giving the gist of testimony of Surya Kant

Dixit PW 1 and thereafter on the day of the incident on the

9

receipt of telephonic message at about 12 O'clock at noon.

It is pertinent to state that this witness used to reside

in Mainpuri in a separate portion of the house of PW 1. He

being a close relative of Surya Kant Dixit PW 1, it is

quite believable that he had acquired knowledge of the

persistent demand of Maruti Car by the accused on Geeta's

visits to her parental house and he had also accompanied PW

1 to her Sasural three months before the incident as also

on the day of the incident. The testimony of Surya Kant

Dixit PW 1 and Jaideo Awasthi PW 2 is thus quite credible

regarding the illegal demand of a Maruti Car as in dowry by

the two accused since after six months of the marriage and

that they subjected her to harassment, maltreatment and

humiliation on non-fulfilment of the said demand. It goes

without saying that cruelty or harassment may not only be

physical but also mental.

There is an important feature of the case. In the

present case, Surya Kant Dixit PW 1 has described Ghanshyam

Tiwari (father-in-law of his daughter) as a gentleman. He

has all the respect and regard for him. Even when he was

humiliated by the two accused about three months before the

incident on his expressing inability to meet their demand

of Maruti Car in dowry, he (PW1) had gone to him at his

employment place in State Bank and had not taken any action

on the consolation offered by him. He mentioned this fact

in the FIR too. It appears that Ghanshyam could not

10

control the disposition of his wife and son (the two

accused) and they continued to pursue their greed by

tormenting and maltreating the young lady (deceased) to get

a Maruti Car in dowry from her parents. She (Geeta) had to

pay the price of non-fulfilment of this demand of theirs,

losing her life at their hands.

Only the husband and mother-in-law of the deceased have

been accused of the offences in question. Besides them,

there were three other family members i.e., Ghanshyam

Tiwari (father of accused No. 1 and husband of accused No.

2), Km. Vidushi DW 1 (sister of the accused No. 1) and Km.

Shalini, another unmarried sister of accused No. 2. Such

composition of the family has been related by Vidushi DW1.

The circumstance that only the husband and mother-in-law of

the deceased have been made accused of the offence, sparing

the other three, is an indication that Surya Kant Dixit

(father of the deceased) has not acted out of malice, anger

or to wreak vengeance, as otherwise he would have

implicated the entire family including the father-in-law of

the deceased and two unmarried sisters of the husband of

the deceased as is often done by the parental side of the

bride in a dowry death case. Indeed, the prosecution could

not be expected to bring forth any other evidence as to the

persistent demand of dowry in the form of Maruti Car by the

two accused after about six months of the marriage and

11

maltreatment, harassment and torture heaped upon her

(deceased) by the two accused on non-fulfilment of the said

demand. The evidence on this aspect of the matter as

contained in the statements of Surya Kant Dixit PW 1 and

Jaideo Awasthi PW 2 has the natural aura of the truth.

Learned counsel for the appellants argued that the

alleged demand of Maruti Car made after about six months of

marriage does not answer the test of 'soon before' the

death of the deceased. She reasoned that as per the own

case of the prosecution, there was no interaction between

the two sides since before three mnonths of the death of

the deceased when Surya Kant Dixit PW 1 and Jaideo Awasthi

PW 2 had allegdly been humiliated and turned out by the two

accused from their house with the direction not to come

there again without a Maruti Car and that there was no

evidence that any such demand was made during the period of

three months intervening between the alleged incident of

turning them out of the house by the accused and the death

of the deceased. The counsel for accused made reference to

the case of Balwant and another Vs. State of Punjab AIR

2005 SC 1504 to stress the point that proximity

test has to be applied. The argument, in our opinion,

cannot be accepted.

As held by this Court in Kunhiabdullah and another Vs.

State of Kerala, 2004 (4) SCC 13, 'soon before' is a

12

relative term and it would depend upon the circumstances of

each case and no strait-jacket formula can be laid down as

to what would constitute a period of 'soon before the

occurrence'. It 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. 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 the death in question. There

must be existence of a proximate and live link between the

effect of 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.

There can be no quarrel with the proposition that the

proximity test has to be applied keeping in view the facts

and circumstances of each case. Regarding the aforesaid

decision, the facts were somewhat different in that the

deceased was not shown to have been subjected to cruelty by

13

her husband for at least 15 months prior to her death. On

the fact of that case, it was held that Section 304B IPC

was not attracted.

On the other hand, the present case fully answers the

test of 'soon' before'. There is the testimony of demand

of Maruti Car being pressed by the two accused persons

after about six months of the marriage of the deceased

(which took place about three years before the incident)

and of her being pestered, nagged, tortured and maltreated

on non-fulfilment of the said demand which was conveyed by

her to her parents from time to time on her visits to her

parental home and on telephone. Things had reached to such

a pass that on getting a message from her about three

months before the incident, Surya Kant Dixit PW 1

accompanied by Jaideo Awasthi PW 2 had to go to her Sasural

in Farrukhabad in an attempt to dissuade the two accused

from pressing such demand, but they (the two accused)

humiliated them and turned them out of the house with the

command not to enter their house again without meeting the

demand of a Maruti Car. He did not take any action on the

consolation offered by the father-in-law of his daughter

and also on the advice of his daughter. It was natural

that the victim also did not want her father to take any

extreme step against the two accused. She might have

thought that things would improve with the passage of

14

time but it seems that that did not happen. Surya Kant

Dixit PW 1 was in a helpless state after suffering

humiliation at the hands of the accused persons about three

months before the actual incident. He could simply wait and

watch in the hope of things to improve, but the situation

did not improve at all. It, however, cannot be taken to

mean that the demand made by the two accused persons had

subsided or was given up by them. It can justifiably be

inferred from what happened subsequently that they

continued to torture the unfortunate lady because of non-

fulfilment of the demand of Maruti Car. In our opinion,

the test of 'soon before' is satisfied in the facts,

evidence and circumstances of the present case.

Thus, ingredients No. 3, 4 and 5 for attraction of

Section 304B IPC, are also established by satisfactory

evidence adduced by the prosecution in the form of the

testimony of Surya Kant Dixit PW 1 corroborated by Jaideo

Awasthi PW 2.

As regards the important question whether the death of

Geeta was homicidal as alleged by the prosecution or

suicidal as claimed by the defence, there is a popular

adage that the witnesses may lie but the circumstances will

not. In the present case, certain recoveries made from the

spot strongly indicate that the death of Geeta was

homicidal. There are two important recovery memoes Ex.Ka-10

15

and Ka-11. The recovery memo Ex.Ka-10 relates to the

recovery of blood and bloodstained Bindia from the Chhajja

(balcony) situated outside the room in which the dead body

of the deceased was found lying. The said recovery is a

pointer that the deceased had been subjected to violence

there and there was struggle btween her and her captors.

Such recovery leads to the justifiable inference that she

had received injuries, and blood had oozed in drops found

at the Chhajja. She was a young lady of about 24 years of

age. The instinct of self preservation is strongest in all

human beings. Seemingly, violence had first been applied to

her inside the bedroom by the accused and offering

resistance she had somehow run out to the Chajja (balcony)

adjoining the room and the blood dropped there. Another

recovery memo Ex.Ka-11 related to the findings inside the

room in which the dead body was found. Amongst them, there

were broken pieces of bangles also. With the application

of force and violence, she was brought back from the Chajja

(balcony) to the bedroom where she was done to death. It is

noted from the Panchnama Ex.Ka-6 that the receiver of the

telephone was stuck under the left arm of the deceased and

burnt telephone wire was found stuck with the dead body.

The post mortem report also makes mention of the burnt

wire and burnt cordless phone being found stuck with the

dead body along with a half burnt scarf around the neck.

16

The recovery memoes Ex.Ka-10 and Ka-11 had been

prepared by S.I. Ghanshyam Gaur PW 6 at the dictation of

ShirBahadur singh PW 5. Shir Bahadur Singh PW 5 (Tehsildar

Magistrate) is a witness to the recovery memoes. Inquest

report (Panchayatnama) was prepared by himself. One of the

witnesses of the recovery memoes and Panchnama is

Keshav Tiwari, advocate uncle of accused No. 1. These

recoveries were not challenged in the cross-examination of

Shiv Bahadur Singh (Tehsildar Magisttrate) PW 5 or SI

Ghanshyam Gaur PW 6. These recoveries amply indicate that

the deceased had been subjected to violence in the bedroom

and she had succeeded in coming out on the Chhajja

(balcony) to save herself. The signs of struggle and

application of violence in the form of broken bangles

inside the room and the blood and bloodstained Bindia on

the Chhajja were found. Not only this, it appears that the

deceased had even tried to make use of the phone to inform

someone about what was happening with her but she could not

succeed. The presence of burnt cordless phone stuck in the

arm and the burnt wire of phone with the dead body

indicates that she had tried to contact someone on phone,

but in vain. There is nothing to cast doubt on the said

recoveries.

The argument of the learned counsel for the accused,

however, ignores other important aspects of the matter. We

have dealt with the above that there was struggle and

17

application of violence on the deceased on the Chhajja

(balcony) and in the bed room where she was forcibly taken

for being done to death. To incapacitate her of any

meaningful resistance, the accused persons interfered with

her breathing process with the compression of the windpipe

of her neck before burning her. Respiration had not

completely stopped. In other words, the air passage was not

completely blocked by the ligature pressed by the accused

around the neck of the deceased. She was strangulated, but

not to death. Strangulating her half way to overpower her

and to render her incapable of offering any meaningful

resistance, the two accused then poured kerosene over her

and burnt her. This explains the presence of sooty

particles in her larynx, trachea and bronchi. A half burnt

cloth around her neck with a knot had been found by the

panel of doctors conducting post mortem on her dead body.

Her tongue was between the teeth. Ligature mark of large

dimension measuring 31 x 7 cm all around the neck had been

found by the doctors. As stated above, the doctors found a

half burnt piece of cloth around her neck with a knot half

burnt. It was the constricting material used by the accused

for compressing the neck of the deceased.

Dr. R.K. Singh PW 3 explained that strangulation would

mean pressing the neck with force. He also emphatically

stated that strangulation was made by the cloth found

around the neck of the deceased which was bearing a knot.

18

As a matter of fact, ligature mark was the impression left

by the constricting object around the neck. The sign of

"tissue ecchymosed and tracheal ring found compressed" was

explained by the Doctor that it occurred on account of

tying the cloth around the neck with toughness. These were

the signs of violence and force applied by the assailants

on the neck of the deceased strangulating her to render her

immobile and to overpower her, but half way. They

sprinkled kerosene on her and burnt her to accomplish their

objective of causing her death. Nothing could be brought

out of the cross-examination of Dr. R.K. Singh PW 3 to

displace the facts emerging from the post mortem report.

So far as the alleged manipulation in the post mortem report is concerned, the contention for the accused is wholly unfounded. It was a panel of three doctors formed by the District Magistrate to conduct post mortem of the dead body of the deceased. The complainant was an outsider from another city. It would be preposterous to assume that he had such monstrous influence that he could win over the three doctors to produce a port mortem report of his choice, falsely showing the signs of strangulation on the dead body of the deceased. Keshav Tiwari (uncle of accused No. 1) was an Advocate, practising at Farrukhabad who was even present at the time of preparation of the inquest report. He was also a witness of Fard of recovery Ex.Ka-10 and Ka-11. Naturally, he would have been watching the 19

interest of the accused persons. It was practically impossible for PW 1 (father of the deceased) to maneuver any manipulation in the post mortem report. We also cannot accept the argument that the doctors were incompetent.

The theory of suicide put forth by the defence

completely falls through on careful analysis of the

evidence and the attending circumstances. Two different

types of injuries found on the dead body of the deceased,

i.e., the ligature mark of large dimension and the body

being badly burnt because of the ante mortem burns with

smell of kerosene coming out of the body completely rule

out the theory of suicide. A half burnt piece of cloth with

a knot was also found tied around the neck. If a cloth is

suddenly tightened around the neck, it is likely to cause

loss of consciousness, rendering it impossible for the

victim to perform any action because of the interference

with her breathing process. Owing to constricting of neck

by a ligature, it could not at all be possible for the

victim to catch hold of the container of the kerosene and

pour it upon her with the lighting of match stick setting

her ablaze. Her mental faculty would not have been in such

a position to have undertaken such an activity. It is also

to be taken note of that her body was found by the

Investigating Officer at point "A" was depicted in the site

plan in the lonely corner of the bedroom where she was

20

rendered immobile and in a helpless state.

Vidushi DW 1 sister of accused No. 1 tried to support

the theory of suicide by her statement that her sister-

in-law (deceased) used to bear Tabiz in her neck. She

stated that she allegedly enquired from Geeta about the

same and she had replied that she was being haunted by evil

spirits having bad dreams in the night and further that a

month before her marriage, her father had taken her to a

Tantrik who had given Tabiz of her marriage. According to

her, the deceased remained in mental tension because she

had not been able to give birth to any child.

We have not the slightest doubt that the theory of

suicide put forth by the defence is a crude concoction.

Ours is a superstitious society. A number of males and

females wear Tabiz over their persons on the advice of

hermits, astrologers, fortunetellers, palmists, tantriks,

etc., for general well being. It is preposterous that even

before her marriage, the deceased was taken by her father

to some tantrik for such treatment of sorcery so as to

ensure the birth of a child to her within three years of

marriage. It also cannot be accepted that she was living

under gloom or depression for having not given birth to a

child. She was only 24 years of age when she died. She was

educated upto B.Sc. Standard. She had not passed child

21

bearing age. She had been married about three years back.

No evidence could be led by the defence that she was

suffering from some gynaecological problem running counter

to her child bearing capacity. Had there been any such

problem, there would have been some history of her

consultation with medical experts and related treatment.

The accused being her husband and the mother-in-law would

have definitely been in a position to put forth documentary

evidence in this behalf. A bald assertion from the mouth

of the sister of the accused No. 1 could not be believed

that the deceased was suffering from some mental depression

for having not conceived.

We record with dismay that the trial judge has taken

it to be a ground against the prosecution that the knot

found around the neck of the deceased was not produced

before the Court. It is beyond comprehension as to how the

knot of cloth found wrapped around the neck of the deceased

could be produced before him. It is obvious that he

completely misinterpreted the matter relating to the knot

and took it as a circumstance against the prosecution.

While conducting post mortem, the knot found around the

neck of the deceased was untied and removed. In other

words, the body was freed from the knot so as to facilitate

the post mortem. Therefore, there could be no question of

the knot bring produced before the court.

On close scrutiny and careful appreciation of the

22

evidence, we are of the firm view that the trial judge

wrongly accepted the plea of alibi put forth by the two

accused persons to get away from the consequences of the

serious crime committed by them. Their conduct also

voluminously spoke against them. As a matter of fact, only

these two accused had an opportunity to commit this

offence. The father-in-law of the deceased having gone to

State Bank, Farrukhabad (the place of his employment) and

his two daughhters including DW 1 Vidushi having gone to

their educational institution, the two accused persons only

(husband and mother-in-law of the deceased) had the

opportunity to commit this crime inside the bedroom of one

of the them, i.e., accused Satya Narayan Tiwari alias

Jolly. No one else could have access there. The manner in

which the deceased was done to death, i.e., by first

strangulating her and then setting her afire, needed at

least two persons, because she (deceased) was also a young

lady aged about 24 years. As is well known, the instinct

of self preservation is natural in all living beings. A

single person could not have possibly overpowered the

victim to strangulate her and to set her afire. As a

natural instinct, she was bound to offer resistance and

having regard to the two types of the injuries found on her

person at the time of post mortem, it was the handiwork of

at least two persons, who undoubtedly were the husband and

mother-in-law of the deceased. The conduct of the mother-

23

in-law of the deceased was that she lodged a false

information at the Police Station at 1.10 P.M. that her

daughter-in-law had committed suicide. In this report, she

stated that she had gone to supervise the construction work

at her other house and noticing smoke emitting from the

first floor of the bedroom of the house of the incident and

on the shouts of the residents of the locality, she came

rushing to the scene. In our opinion, this statement is

false as per the own showing of her daughter DW 1 Vidushi.

She stated that the house to which her mother had gone, was

situated in another locality. She also stated that it was

not visible from the house of the incident. It also

emerges from her statement that the distance of that house

under construction from the old house of the incident was 1

or 2 furlongs. This being so, there could be no question

of her (accused appellant No. 2) noticing emission of smoke

from the bedroom of first floor of the house where the

incident took place. She (accused appellant No. 2) falsely stated in the report lodged at the Police Station to misguide the machinery of law through false plea of alibi.

The story of seeing smoke coming out of the home and

hearing the alarm of the respondents of the locality

mentioned in the report of Bhuvaneshwari Devi was a stark

lie. She had taken a false excuse to support her baseless

plea of alibi of herself as also her son-husband of the

deceased.

24

The interested testimony of DW 1 Vidushi also cannot be

believed that her brother accused No. 1 - husband of the

deceased had gone to his shop at about 8 P.M. After

committing this crime, the two accused vanished from the

scene, but before doing that, one of them (Bhuvaneshwari-

mother-in-law of the deceased) lodged a false report at the

police station that her daugther-in-law had committed

suicide. It is in the testimony of D.P.N. Pandey PW 7

(C.O/Investigating Officer) that the accused Satya Narayan

surrendered in Court on 7.11.2000 and the other accused

Rani alias Bhuvaneshwari on 13.11.2000. Earlier thereto,

the attempts to find and arrest them turned to be futile.

It is in his testimony that both of them were absconding

and for this reason, on 6.11.2000 a report had been

submitted for issuing process against them under Section

82/83 Cr.P.C. None of the two accused is witness of the

inquest report or Fards. Absconding by both of them after the incident cannot be termed to be normal conduct of innocent persons. The report by the accused Bhuvaneshwari Devi, as we said, was given at the Police Station at 1.10 P.M. On 3.11.2000. In our opinion, it was the outcome of

deliberation and consultation with legal experts who had already gathered at the scene of occurrence along with Keshav Tiwari , Advocate-uncle of the accused Satya Narayan Tiwari, DW 2 Devendra Misra, Advocate, and few other lawyers.

25. We note from the testimony of DW 2 Devendra Misra that the news of the death of daughter-in-law of Ghanshyam Tiwari was received in the District court at 11.30 A.M.,

itself i.e., much before the lodging of the report by Bhuvaneshwari. This witness stated that when he arrived at the scene of occurrence, a group of lawyers was already there. The false report made by the accused Bhuvaneshwari Devi was obviously the outcome of the legal advice to save

the culprits from the consequences of the criminal act committed by them.

Learned counsel for the accused also argued that it was

the accused Bhuvaneshwari who had passed on the information

of the death of the deceased to her parents on telephone.

Surya Kant Dixit PW 1 (father of the deceased) denied that

the telephone received by him was from Bhuvaneshwari Devi.

According to him, he had received the telephone call from

some stranger. Even if it is taken for the sake of

argument that she had telephoned to him, in our opinion, it

is of no consequence and the defence does not score any

point on this premise. The reason is that the crime was

committed by the two accused with preplanning, so much so

that Bhuvaneshwari Devi even lodged a false report at the

police station to misguide the machinery of law and to

create a false defence. Telephoning to the father of the

deceased could only be a part of the scheme to project it

26

as a case of suicide.

We are of the view that the presumption of Section 113-

B of the Evidence Act is attracted in this case and the

discussion that we have made hereinabove makes it

abundantly clear that the defence could not displace the

said presumption. The culpability of the two accused in

committing this crime is established to the hilt by the

facts and circumstances proved by the prosecution. They

undoubtedly are the authors of this crime. The irresistible

conclusion is the the demand of Maruti Car raised by the

two accused after about six months of the marriage

persisted as it was not settled by the father of the

deceased by supplying the same. The prosecution has

successfully proved the persistent demand of Maruti Car as

a part of dowry by the two accused and continuous cruelty

and harassment heaped upon the deceased by them over this

score.

To sum up, the prosecution has been able to prove the

following :

(1)the death of the deceased was caused by strangulation

and burning within seven years of her marriage;

(2)the deceased had been subjected to cruelty by her

husband and mother-in-law (the two accused appellants)

27

over the demand of Maruti Car in dowry raised and

persistently pressed by them after about six months of

the marriage and continued till her death.

(3)The cruelty and harassment was in connection with the

demand of dowry i.e. Maruti Car.

(4)The cruelty and harassment is established to have been

meted out soon before her death.

(5)The Two accused were the authors of this crime who

caused her death by strangulation and burning on the

given date, time and place.

In our opinion, the trial Judge recorded an acquittal

adopting a superfluous approach without indepth analysis of

the evidence and circumstances established on record. On

thoroughly cross-checking the evidence on record and

circumstances established by the prosecution with the

findings recorded by the trial court, we find that its

conclusion are quite inapt, unjustified, unreasonable and

perverse. Proceeding on wrong premise and irrelevant

considerations, the trial court has acquitted the accused.

The accused are established to have committed the offences

under Sections 498-A and 304 B IPC and under Section 4 of

Dowry Prohibition Act and the findings of the High Court

are correct.

As a result of the above discussion, this Appeal is

28

dismissed accordingly.

On 27.10.2005 this Court had granted bail to the

appellants. Their bail bonds are cancelled. They shall be

taken into custody forthwith to serve out remaining period

of sentence.

Application for impleadment is allowed.

......................J.

(MARKANDEY KATJU)

......................J.

(GYAN SUDHA MISRA)

NEW DELHI

OCTOBER 28, 2010.

Labels----the essential ingredients of s.304B IPC, plea of alibi, Sec. 4 of Dowry Prohibition Act , rarest of rare cases, Administration of criminal justice - Framing of appropriate charge, `rarest of rare cases' in the context of dowry deaths, `soon before her death' as occurring in s.304-B IPC, allegation of manipulation of post mortem report, Section 498A IPC,