JUDGMENT M.C. Jain, J.
1. It is a case of bride's unnatural death within seven years of her marriage. The incident occurred on 3.11.2000 at about 12'o clock in the noon in her Sasural in the city of Farrukhabad. She (bride- Gita) was married to the accused respondent No. 1 Satya Narain Tiwari alias Jolly nearly three years before. The accused respondent No. 2 Smt. Rani alias Bhuvaneshwari is her mother-in-law. Both the accused respondents have been acquitted for the offences under Sections 498A/304B I.P.C. and 3/4 of the Dowry Prohibition Act by the Additional Sessions Judge/Special Judge (D.A.A.), Farrukhabad by judgment and order dated 18.6.2003 passed in Sessions Trial No. 172 of 2001. The State has filed the instant Government Appeal against acquittal and the complainant Surya Kant Dixit (father of the deceased Geeta) has also challenged the judgment of acquittal through Criminal Revision No. 1797 of 2003 which has been clubbed with the Government Appeal. The Government Appeal and the Criminal Revision are being decided by this common judgment.
2. The essential background facts are these:
Surya Kant Dixit PW 1 (father of the deceased) resident of adjoining district Mainpuri lodged a formal F.I.R. on 3.11.2000 at 5.10 P.M. at Police Station Kotwali, District Fnrrukhabad on the basis of which a case was registered. Earlier thereto, Smt. Rani, the accused respondent No. 2 (mother-in-law of the deceased) had informed the police at 1.10 P.M. the same day, setting up the story of suicide having been committed by the deceased when she (accused respondent No. 2) had allegedly gone to her another house under construction and her husband having gone to the place of his employment-Bank and her son (accused respondent No. I-husband of the deceased) having gone to his business shop. The information passed on by her to the police had set the machinery in motion, leading the police to reach the spot, preparation of inquest report etc. of the dead body of the deceased.
3. The accusations made by the father of the deceased in the formal F.I.R. were that about three years before the incident, he had married her daughter Geeta with the accused No. 1 Satya Narain Tiwari alias Jolly after giving Rs. 4 Lacs in dowry as demanded by the in-laws of the deceased. After about six months of the marriage, his daughter's husband and mother-in-law (accused respondents) started demanding a Maruti car as part of the dowry, subjecting the deceased to cruelty on this score. Mis daughter Geeta used to complain to him in this behalf on phone, his brother Vinay, cousin brother Ravindra Kumar, Jaideo Awasthi etc. About three months before the incident, he and Jaideo Awasthi had gone to the Sasural of Geeta when her mother-in-law Rani repeated the demand of Maruti car. On expressing his inability to meet the said demand, he and Jaideo were insulted and, turned out of her house. However, he swallowed all this and did not take any action at the persuasion of Geeta and her father-in-law Ghanshyam Tiwari. On the day of the incident (3.11.2000) at about 12 O' Clock someone gave information to him on telephone at Mainpuri about his daughter's death. He immediately left Mainpuri for Fairukhabad and reached the place of occurrence at about 4 P.M. to find half burnt dead body of his daughter in the bedroom with a half burnt piece of cloth around her neck. Her tongue was protruding. He also noticed drops of blood and Bindiya lying in the balcony. Shortly put, this was the accusation made by the father of the deceased. As per the F.I.R., he accused that his daughter had been killed by her husband and mother-in-law.
4. After lodging the F.I.R., the first informant made an application Ex.Ka-2 to the District Magistrate, Farrukhabad for constituting a panel of five doctors for conducting post mortem. Acceding to his request, in consultation with the Chief Medical Officer, Farrukhabad, the District Magistrate constituted a panel of three doctors for conducting post mortem over the dead body of the deceased. It was taken up that very day, i.e., 3.11.2000 at 10.10 P.M. The panel consisted of Dr. R.K. Singh, Dr.R.D. Srivastava and Dr. Janardan Babu who conducted autopsy on the dead body of the deceased. One of them, Dr. R.K. Singh has been examined as PW 3 to prove the. post mortem report. The salient features of the same are set forth here for the sake of facility. The deceased was aged about 24 years and about l/2 day had passed since she died. She was of average built. Eyes and mouth were partly open. Tongue was between 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. The following ante mortem injuries were found on her person:
1. Ligature mark all around the neck, 31 cm x 7 cm. Base slightly grooved with dark' red. On cut section-tissue ecchymosed and tracheal ring compressed. Clotted blood under soft tissues found.
2. Superficial to deep burns all over body. Blisters at places present. On cut section serum fluid present.
5. Internal examination revealed that membranes of brain were congested. Pleura and right lung were also congested. Larynx, trachea and bronchi were congested with sooty particles present. Both chambers of heart were full. Oesophagus, spleen and kidneys were also congested. As per the opinion of the Doctors conducting the autopsy, the cause of death was suffocation with shock as a result of strangulation with simultaneous ante mortem bums.
6. After investigation, the two accused respondents were booked for trial. Their case was of denial of demand of dowry and according to them, the deceased committed suicide as she was living in gloom and depression for having not been able to give birth to any child after marriage. And, she did so, when no other member of the family was present.
7. At the trial, the prosecution examined seven witnesses. Surya Kant Dixit PW I 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 out the demand of 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 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 F.I.R. lodged by Surya Kant Dixit PW 1. Shiv 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 FW 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 the 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. Reference to their testimony shall be made later on at appropriate place(s) as and when necessary.
8. The evidence of the prosecution did not find favour with the trial court. The trial Judge held that the prosecution case was not clear whether the deceased died of strangulation or of burn injuries. According to him, the prosecution also failed to prove the demand of dowry by the accused and of the deceased having been treated with cruelty by them on that score. He accepted the plea of alibi put forth by the two accused respondents and held that the deceased committed suicide on account of mental depression. He therefore, recorded acquittal.
9. We have heard Miss N.A. Moonis, learned A.G.A. and Sri Prem Prakash for the complainant as also Sri V.P. Srivastava assisted by Sri R.B. Sharma from the side of accused respondents. According to the State and learned counsel for the complainant, the findings of the trial court are illegal and perverse based on surmises and conjectures only to throw away the well established prosecution case. On the other hand, the learned counsel for the accused respondents has tried to support the reasoning adopted by the trial court to find the accused respondents not guilty.
10. We propose to examine hereunder the whole gamut with reference to all the relevant aspects of the matter keeping in view the arguments advanced from the two sides.
11. To begin with, it h is to be kept in mind that for an offence of dowry death under Section 304B I.P.C., the term 'dowry' has the same meaning as in Section 2 of the Dowry Prohibition Act 1961. Through Amending Acts, i.e., Act No. 63 of 1984 and Act No. 43 of 1986, the definition of the term 'dowry' in Dowry Prohibition Act was altered and the demands made after solemnization of marriage would be 'dowry'. We may refer with profit to the decision of the Supreme Court in the cast of State of H.P. v. Nikku Ram 1995 Crl. L.J. 4184 in which the legal position on the point has elaborately been clarified in paragraphs No. 12 and 13 as under:
"12. The definition as amended by the aforesaid two Acts does not, however, leave anything to doubt that demands made after the solemnization of marriage would be dowry. This is because the definition as amended ready as below:-
"In this Act "Dowry" means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b)Dy the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of person to whom the Muslim Personal Law (Shariat) applies."
"13. The aforesaid definition makes it deer that the property or the valuable security need not be as a consideration for marriage, as was required to be under the unamended definition. This apart, the addition of the words "any time" before the expression "after the marriage" would dearly show that even if the demand is long after the marriage the same could constitute dowry, if other requirements of the section are satisfied."
12. Further, as held by the Apex Court in the case of Kunhiabdulla v. State of Kerala, 2004 (48) ACC 950, in order to attract application of Section 304B I.P.C., the essential ingredients are as follows:
1. The death of a woman should be caused by bums or bodily injury or otherwise than a normal circumstance;
2. Such a death should have occurred within seven years of her marriage.
3. She must have been subjected to cruelly 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.
13. 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 stated in paragraph 2 of her statement that the deceased Geeta was married to her brother Satya Narain Tiwari alias Jolly on 9.12.1997. So, to say precisely, her unnatural death in her Sasural occurred within three years of her marriage.
14. As regards ingredients No. 3, 4 and 5, the relevant testimony is contained in the statements of the deceased'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 nonfulfillment 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 and 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 house at Farrukhabad and repeated the demand of Maruti car. On his expressing inability to meet this demand, he and Jaideo Awasthi were 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 Maruti car. Surya Kant Dixit PW 1 then went to Geeta'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 PW 1, also advised him not to take any action and he went away. The victim might have thought that making of F.I.R. 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.
15. 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 to find her dead in the bedroom of the first floor of the house.
16. 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 receipt of telephonic message at about 12 O' clock in the noon. It is pertinent to state that this witness used to residean Mainpuri in a separate portion of the house of Surya Kant Dixit 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 Surya Kant Dixit 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 has the ring of truth regarding the illegal demand of Maruti car 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.
17. Negative sort of evidence given by Vidhushi DW 1, sister of the husband of the deceased could not eclipse the confidence inspiring evidence of these two witnesses.
18. 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 praises 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 (PW 1) had gone to him at his employment place in State Bank and had not taken any action oil the consolation offered by him. He mentioned this fact in the F.I.R. too. It appears that he could not control the cupidity 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 nonfulfillment of this demand of theirs, losing her life at their hands.
19. 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 come to be related by Vidushi DW 1. The circumstance that only the husband and mother-in-law of the deceased have been made accused of the offence, sparing other three, is an indicator that Surya Kant (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 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 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.
20. Learned counsel for the respondents argued that the alleged demand of Maruti car made after about six months of marriage does i not answer the test of 'soon before' the death of the deceased. He reasoned that as per the own case of the prosecution, there was no interaction between the two sides since before three months of the death of the deceased when Surya Kant Dixit PW 1 and Jaideo Awasthi PW 2 had allegedly been humiliated and turned out by the two accused from their house with the command not to reach there again without Maruti car and that there was no evidence that any such demand was made during the period of three months intervening the alleged incident of turning them out of the house by the accused and the death of the deceased. The counsel for accused respondents made reference to the case of Balwant and Anr. v. State of Punjab 2005 (I) JIC-7 (SC) to stress the point that proximity test has to be applied. The argument, in our opinion, cannot be accepted.
21. We should remind ourselves that as held by the Supreme Court in the case of Kunhiabdullah and Anr. v. State of Kerala 2004 (48) ACC 950 SC , '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 constituted 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 , raiding a presumption under Section 113B 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 alleged incident of cruelty is remote in time and has become state enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
22. 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. Of the case cited by the learned counsel for the accused respondents, the facts were somewhat different in that the deceased was not shown to have been subjected to cruelty by her husband for at least 15 months prior to her death. On the facts of that case, Section 304B I.P.C. was held to be not attracted.
23. On the other hand, the present case fully answers the test of 'soon before'. There is emphatic 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 parental home and on telephone. The 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 wean away and dissuade the two accused from pressing such demand, but they (the two accused) humiliated him and turned him out of the house with the command not to enter their house again without meeting the demand of 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. The time is the greatest healer. She might have thought that things would improve with the passage of time. But the destiny did not chalk out a smooth course for her. 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. By commanding Surya Kant Dixit not to come to their house without meeting the demand of Martin car, they simply destroyed the bridge of further interaction or dialogue. 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 perfectly answered in the positive by the facts, evidence and circumstances of the present case.
24. To pick up the thread, ingredients No. 3, 4 and 5 for attraction of Section 304B I.P.C. 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.
25. Now, we switch over to 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 memos Ex.Ka 10 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 between 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 Chhajja (balcony) adjoining the room and the blood dropped there. Another recovery memo is Ex.Ka-11 relating to the finds inside the room in which the dead body was found. Amongst the finds inside the bedroom, there were broken pieces of bangles' also. With the application of force and violence, she was brought back from Chhajja (balcony) to the bedroom where she was done to death.
26. It is noted from the Panchayatnama Ex. Ka-6 that receiver of the telephone was stuck under left arm of the deceased and burnt telephone wire was found stuck with the dead body.
27. The post mortem report also makes mention of the burnt wire and burnt cordless phone being found stuck with the dead body along with half burnt scarf around the neck.
28. The recovery memos Ex.Ka-10 and Ka-11 had been prepared by S.I. Ghanshyam Gaur PW 6 at the dictation of Shiv Bahadur Singh PW 5. Shiv Bahadur Singh PW 5 (Tehsildar Magistrate) is a witness to the recovery memos. Inquest report (Panchayatnama) was prepared by himself. One of the witnesses of the recover)' memos and Panchayatnama is Keshav Tiwari, Advocate, uncle of accused No. 1. These recoveries were not challenged in the cross-examination of Shiv Bahadur Singh (Tehsildar Magistrate) PW 5 or S.I. 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 oat on Chhajja (balcony) to save her. 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 of 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 was nothing to cast doubt on the said recoveries.
29. Learned counsel for the accused respondents, however, argued that the circumstance of such recoveries could not be read as evidence against them because no question was put under Section 313 Cr.P.C. with regard thereto. This contention is factually incorrect. We have checked the questions put to the accused persons under Section 313 Cr.P.C. and find that question No. 6 specifically relates to the recoveries made through recovery memos Ex. Ka-10 and Ka-11 as also to the Panchayatnania. The answer of both the accused was "Arop Patra Galat Lagaya Gaya, Hai. "
30. Learned counsel for the accused respondents argued that, the blood was due to menstruation of the deceased. Reference was made to the written statement filed by the accused Satya Narain Tiwari that menstruation of his wife had started on 2.11.2000. This defence is built on straw and is belied by the recovery of bloodstained Bindia from the balcony. There could hardly be any question of Bindia of the deceased having fallen down on the balcony, had there not been any struggle there. In all probabilities, the two accused subjected her to violence on face, nose etc. inside the room and then in balcony, so much so that her Bindia and some blood dropped down from her injuries. They (the accused) might have assaulted her in the room so that her bangles got broken and blood as also the Bindia fell down on the balcony. They might have struck blows on her face, nose etc. causing blood to come out. Bleeding injury could also be caused by the breaking of bangles during the course of scuffle and struggle. The entire body of the deceased was burnt and it was so badly charred that it gave pugilistic appearance. Resultantly, no signs of such bleeding injury could be noted in the post mortem.
31. Reference was made by the learned counsel for the accused respondents to the statement of Sushil Kumar Misra DW 3. He was a stranger who stated to have seen some cloth being stuck on the 'private part of the deceased. We note that he could not give any plausible and acceptable reason for his presence at the scene of incident. He claimed to have gone to Mohalla Smt. Sumal to meet his friend Prem Arya at about 11 A.M. for booking a gas cylinder. It sounds to be improbable inasmuch is he knew that his friend Prem Arya, Manager of Swami Gas Service, used to leave his house at 8 A.M. for his showroom. So, there could hardly be any question of his going to the house of Prem Arya at about 11 A.M. for booking a gas cylinder. Obviously, he was a witness picked up by the defence at random. In any view of the matter, cloth around or on private part of the deceased could be half burnt apron or undergarment of the deceased sticking to her body. The same does not overshadow the recovery of blood and bloodstained Bindia of the deceased from the Chhajja (balcony) which we find to be an important piece of evidence of the victim having been subjected to violence there by the accused respondents.
32. So to come to the point, the recoveries which we have referred to supply important circumstantial evidence in favour of the prosecution and against the accused persons.
33. Learned counsel for the State and complainant argued that two types of injuries found on the person of the deceased as per the post mortem report further advanced the prosecution case against the accused respondents. On the other hand, the learned counsel for the accused respondents stressed the reasoning adopted by the trial court to support acquittal that the prosecution could not successfully prove as to whether the deceased died of strangulation or of burn injuries. He urged that the post mortem report was manipulated showing strangulation as one of the causes of death. According to him, she committed suicide by burning. He tried to support his argument submitting that no signs of bruises were found underneath the ligature mark; hyoid bone was not fractured and that both the chambers of the heart were found full of blood. These signs, according to him, were more in conformity with death by burning, and not by or with strangulation. It has also been urged that sooty particles were found present in the larynx, trachea and bronchi on internal examination, meaning thereby that she was alive when burnt. It has been urged that had she been strangulated to death, there could hardly be any necessity of burning her. He tried to make out that symptoms found in the dead body of the deceased were in conformity of her having died of burning only which, according to his submission, she did herself white committing suicide.
34. To appreciate the conclusion flowing from post mortem report and the statement of Dr. R.K. Singh PW 3 who conducted autopsy with two other Doctors, the symptoms found in internal examination of the dead body should be recapitulated. Membranes, pleura, larynx, trachea and bronchi with sooty particles as also both the lungs were congested. Both the chambers of the heart were full. Spleen and kidneys were also congested. The dead body had pugilistic appearance. When a body has been exposed to great heat, it gets cooked and becomes so rigid that it assumes an attitude of toughness, called 'pugilistic posture'.
35. The learned counsel for accused respondents argued that as per medical science, the symptoms found on death by burning are these The pleurae are congested; the lungs are usually congested; chambers of heart are usually full of blood and "sooty carbon particles are found in larynx, trachea and bronchial tubes. If sooty and carbon particles are found in larynx, trachea, main bronchi and smaller bronchi, the counsel argues, respiration must have been proceeding during conflagration and, therefore, the fire was in progress during life.
36. The argument of the learned counsel for the accused respondents, however, ignores other important aspects of the matter We have dealt with above that there was struggle and application of violence to 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 neck before burning her. Respiration had not completely stopped. To say in other words, air passage was not completely blocked by ligature pressed by the accused around the neck of the deceased. She was strangulaled, but not to death. Strangulating her half way to overpower her and to render her incapable of offering any meaningful resistance, the two accused poured kerosene over her and burnt her. It explains the presence of sooty particles in her larynx, trachea and bronchi. Half burnt cloth around her neck with knot had been found by the panel of the doctors conducting post mortem over her dead body. Her tongue was between the teeth. Ligature mark of large dimension measuring 31 cm 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.
37. 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. 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 mission 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. Sooty particles found in the breathing vessels of the deceased only indicated that her life was not extinct when she was put on fire. She inhaled sooty particles while breathing before being dead.
38. So far as the absence of bruise underneath the ligature mark is concerned, true Dr. R.K. Singh PW 3 did not find any mark of bruise underneath the cloth wrapped around the neck of the deceased. The object with which neck is pressed leaves the impression on the site of the neck. But if the cloth used as the constricting material for pressing the neck is soft, mark of bruise can not be found. When something soft and yielding is used as ligature, it shall produce nothing more than slight depression or flushing of. the skin. In the present case, the base of the ligature mark was found slightly grooved, with dark red and the Doctor explained that it was the result of constricting the neck by the cloth. Obviously, the soft cloth would only produce such a sign. Of course, hyoid bone was not found fractured, but it did not negate strangulation and constricting the neck of the deceased with a piece of cloth. As per Taylor's Principles and Practice of tyledical Jurisprudence, it is unusual to find fracture of hyoid bone in persons under 40 years of age ( it would be recalled that the deceased was a young lady of about 24 years). On survey, it was found that percentage of hyoid fracture in strangulation by ligature was 13. So, the fracture of hyoid bone was very infrequent. Another celebrated it author Modi has also used the word 'may', saying that hyoid bone may be fractured in case of strangulation. The view has received approval of the Supreme Court also in the case of State of Karnataka v. K. Gopala Krishna, wherein it has been observed in para 11 as under:
"It is well accepted in medical jurisprudence that hyoid bone could be fractured only if it is pressed with great force or hit by hard substance. Otherwise, hyoid bone is not a bone which can be easily fractured."
39. As a matter of fact, it would mostly depend upon the amount of force applied in constricting the neck. Really speaking, the marks on the neck would depend on the relative position of the victim and the assailants and the way in which the neck was gripped and there would be variation depending upon the amount of force.
40. Judged in the right perspective, the submission of the learned counsel for the accused respondents does not score any point for them.
41. It takes us to this part of the argument of the learned counsel for the accused respondents that both the cavities of heart were found filled with blood. According to him, it negated the theory of strangulation. It is not possible to agree with this argument for the discussion that follows.
42. In the chapter of "Deaths from Asphyxia" while dealing with the signs produced in the case of strangulation, the celebrated author Modi's view is that right side of heart is full and left is empty, but sometimes both the cavities are full if the heart stops during diastole. Another celebrated authority Cox (citing one of America's most experienced forensic Pathologist and writer Dr. Lister Adelson) has said that increased fluidity of blood and dilation of the right side chamber of the heart arc quite meaningless and useless and should be disregarded. So, to come to the point, the symptom of both the chambers of heart having been found full of blood did not at all negate the strangulation of the deceased by constricting her neck with a piece of cloth so as to apply force to it. To repeat, the respiration process did not completely stop with the blockage of the air passage, though she was incapacitated of rendering any meaningful resistance and in the meantime the two accused persons doused her with kerosene and burnt her while she was still breathing and she happened to inhale soot and carbon found in her larynx, trachea and bronchi.
43. We, therefore, reject the argument of the learned counsel for the accused respondents that there was any conflict emerging from the post mortem report.
44. So far as the alleged manipulation in the post mortem report is concerned, the contention of the accused respondents is wholly unfounded. It was a panel of three doctors formed by the District Magistrate to conduct post mortem over 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 post mortem report of his choice, falsely showing the signs of strangulation over 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 if inquest report. He was also a witness of Fard of recovery Ex.K.a-10 and Ka-11. Naturally, he would have been watching the interest of the accused persons. It was practically impossible for Surya Kant Dixit PW 1 (father of the deceased) to maneuver any manipulation in the post mortem report.
45. 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 pouring it upon her with the litting 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' as depicted in the site plan in the lonely comer of the bedroom where she was rendered immobile and in helpless state.
46. Vidushi DW 1 sister of accused No. 1 tried to support the theory of suicide by her such statement that her sister-in-law (deceased) used to bear Tabiz in her neck. She had allegedly enquired from her about the same and she had replied that she was being haunted by evil spirits having bad dreams in night and further that a month before, her marriage, her father had taken her to a Tantrik who had given Tabiz to her assuring that she would bear a child within three years of her marriage. According to her, the deceased remained in mental tension because she had not been able to give birth to any child.
47. 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, Taritriks etc. for general well being. It is preposterous that even before her marriage, the deceased had been 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 can not 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 bearing age. She had been married about three years back. No evidence could be led by the defence that she was suffering from' some gynaeco 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 expert 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.
48. The defence also came forward with the story that the Investigating Officer D.P.N. Pandey, Dy. Superintendent of Police, examined as PW 7 had found a suicide note in the drawer of the deceased which was in her writing but he took away the same. He had allegedly read over the same to all present including Keshav Tewari, Advocate (uncle of accused respondent No. 1) DW 2 Devendra Misra, Advocate, media persons and members of the family of the in-laws of the deceased as also of her parents side. He, however, took away the same on the ground that he would make mention of the same in the case diary. DW 2 Devendra Misra, Advocate stated that he and others had asked the C.O. to prepare Fard of suicide note but he did not do that. According to DW 2 Devendra Misra, a number of other lawyers were also present at that time. The said C.O. examined as PW 7 denied that he found any such suicide note. It does not get down the throat that any such alleged suicide note could have been taken by the C.O. in the alleged manner in the presence of a number of lawyers, namely, Keshav Tiwari, Devendra Misra and others without preparing any recovery memo. DW 2 Devendra Misra admitted that he knew the importance of the recovery of the said suicide note and also knew that the preparation of recovery memo in that behalf was necessary. cannot be accepted that in the presence of a large number of persons including lawyers and media persons, the alleged suicide note could be taken away by the CO., an uninterested person, charged with the duty of investigation of the case. The large number of persons including lawyers would not have permitted him to take away the same without preparing recovery memo. It is also pertinent to state that no complaint was ever made to the higher police authorities in this behalf. No request was made for the change of Investigating Officer either. In our considered opinion, the alleged recovery of suicide note by the CO. and the same having not been placed on record of the case is a cock and bull story coined in a desperate attempt to create false defence.
49. The theory of suicide was attempted to be propped up on another plank also. DW 1 Vidushi attempted to prove a diary Ex.Kha-2. According to her, it was in the handwriting of her sister-in-slaw. It is an old diary of 1998, in which she is purported to have recorded her pleasant events and those in low spirited mood. The learned counsel for the accused respondents argued that it does not contain even a whisper indicating that she had any grievance against her husband or mother-in-law or that there was any demand of dowry from their side. Instead, according to him, in the date of 2.12.1998 she wrote that at times her husband treated her very lovingly. We are afraid it is not possible to draw any conclusion in favour of the defence on the basis of this diary. We are firmly of the view that it is another piece of fictitious document put forth by the defence. Initial page meant for writing name etc. is missing from the diary. It is not proved at all that it is in the handwriting of the deceased. Rather, the entries of dates 14.4.1998, 17.4.1998, 18.7.1998 and 1.8.1998 clearly indicate that it was a business diary which was in use of the husband of the deceased. The details of business dealings are recorded in these dates. It is obvious that tearing off the first page, which was to give the clue as to whom this diary belonged, false evidence has been attempted to be created by the accused to make a show that the deceased used to write this diary in pleasant and gloomy moments of her life. We reject this argument.
50. Yet another argument of the learned counsel for the accused respondents was that the room in which the dead body of the ceceased was found was bolted from inside and had to be broken open. According to him, it indicated that she committed suicide. To support this argument, he referred to the statement of DW 1 Km. Vidushi that when she reached home from her college, the door of the room (in which the dead body was found) was bolted from inside and the ply of the door was also broken. Our attention was invited to the statement of Shiv Bahadur Singh PW 5 who stated that when he reached 'the spot and inspected the room, he found that inner latch of the room was a bit twisted and some part of the ply of the door was not in its place. The statement of DW 3 Sushil Kumar Mishra was referred to that the door of the room was closed from inside and the door had to be opened by kicking it, so much so that the ply gave way and the inner latch was twisted. On analysis, it is not possible to accept that the door of the room in which the dead body was found was bolted from inside. Ms. Vidushi DW 1 in her cross-examination retracted her, earlier statement that the door was bolted from inside. We gather the impression that she was speaking out of her imagination with the underlying idea to save the accused-her brother and mother. Two falsehoods fight between themselves. So far as DW 3 Sushil Kumar Misra is concerned, he was a got up witness. There was hardly any occasion for him for going to that locality to meet one Prem Arya at about the midday when it was within his knowledge that he (Prem Arya) used to leave his house for his showroom at about 8 O' clock in the morning. The purpose, according to him, was to get a gas cylinder. It is admitted that in the showroom as well as in the godown of the agency, telephone connect/on was there. The witness also owned a telephone connection. Gas cylinders, it is well known, are dispatched to the consumers on making booking on telephone. The witness did not offer himself to the Investigating Officer for recording his statement to the effect that the door of the room had been bolted from inside and it had to be opened by giving kicks to the door. He simply remained silent for about 2 1/2 years and for the first time appeared in court on 24.5.2003 as a defence witness. The truth of the matter is that the door was found open by the Tehsildar Magistrate and the Sub-Inspector. The offence had been committed by the accused with preplanning. The possibility was very much there that before arrival of the persons of law machinery at the spot, the inner latch of the room was a little twisted and the ply of the door was somewhat made out of place to make a show that the room was bolted from inside and had to be opened by giving kicks to the door.
51. On judging the theory of suicide from all possible angles, we do not find any iota of substance therein and we reject it.
52. We record with dismay that the trial Judge has exhibited lack of common sense in taking it to be ground against the prosecution that the knot found around the neck of the deceased was not produced before the court. It spills 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 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. To say in other words, the body was to be freed from the knot so as to facilitate the post mortem. Therefore, there could be no question of the knot being produced before the court.
53. On close scrutiny and threadbare analysis, we are also 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 that it were they who committed this crime. 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 daughters 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 them, i.e., accused Satya Narain Tewari 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 overpower the victim to strangulate her and to set her afire. As a natural instinct, she was bound to offer resistance and having regard to 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 husband and mother-in-law of the deceased. The conduct of the mother-in-law of the deceased was that she lodged 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 another house and noticing smoke emitting from the first floor of the bedroom of the house of incident and on the shouts of the residents of the locality, she came rushing to the scene. Her this statement is false as per the own showing of her daughter DW 1 Vidushi. She stated that the house on which the construction work was going on, for supervision of 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 came down from her statement that the distance of that house under construction from the old house of the incident was or 2 furlongs. This being so, there could be no question of her (accused respondent No. 2) noticing emission of smoke from the bedroom of first floor of the house where the incident took place. She (accused Bhuvaneshwari Devi) falsely so 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.
54. Interested testimony of DW I Vidushi also could not be believed that her brother accused No. 1-husband of the deceased had gone to his shop at about 8 A.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 daughter-in-law had committed suicide. Surya Kant Dixit PW 1 and Jaideo Awasthi PW 2 denied the presence of the two accused persons when they reached the place of incident. It is there in the testimony of D.P.N. Pandey PW. 7 (C.O/Investigating Officer) that the accused Satya-Narain 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 there 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 inquest report or Fards. Invisibility of 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. 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 Narain Tiwari, DW 2 Devendra Misra, Advocate, and few other lawyers. We note from the testimony of DW 2 Devendrai 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 the outcome of the legal advice to save the culprits from the consequences of the criminal act committed by them.
55. Learned counsel for the accused respondents 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 it that the telephone received by him was from Bhuvaneshwari Devi. According to him, he had received a telephone from some stranger. Even if it is taken for the sake of argument (though we do not believe it to be that) that she had telephoned to him, 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.
56. Telephoning to the father of the deceased could only be a part of the scheme to project it as a case of suicide.
57. We are firmly of the view that the presumption of Section 113B of the Evidence Act is well 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 respondents in committing this crime is established to the hilt by the facts and circumstances proved by the prosecution. They undboubtedly are the authors of this crime. The irresistible conclusion is that the demand of Maruti car raised by the two accused respondents 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.
58. To sum up, the prosecution has been able to prove the following.
(1)The death of toe 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 respondents) over the demand of Maruti car in dowry raised and persistently pressed by them after about six months of the marriage 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) Two accused respondents were the authors of this crime who caused her death by strangulation and burring on the given date, time and place.
59. The trial Judge recorded acquittal with 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 respondents. The accused respondents are established to have committed the offences under Sections 498A and 304B I.P.C. and under Section 4 of Dowry Prohibition Act.
60. Now comes the question of sentences to be passed against the two accused respondents for the above offences committed by them. Gravity of the offence is an important guiding factor for determining the quantum of sentence. Some offences including those against women require exemplary punishment. Dowry is a deep rooted malady plaguing our society and many women are burnt to death or otherwise transported to the other world by their husbands and in-laws on non-fulfilment of the demand of dowry. The evil of dowry takes the life of many a young ladies. Dowry confronts and at times haunts many parents of young girls in our country. Relying on "Law in changing Society" by Friedman, the Supreme Court stated in the case of Surjeet Singh v. Nahar Ram and Anr. on the aspect of imposing appropriate sentence on the culprit as under:
" The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system, to undermine the public confidence in the efficacy of law and society could no longer endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc.
61. The present was the most horrendous bedroom crime committed by the two accused respondents (mother-in-law and husband of the deceased) cutting short the life of the young lady in a very cruel manner for the greed of dowry. It is a fit case where maximum sentence of life imprisonment provided under Section 304B I.P.C. should be awarded to them. For the offence of Section 498A I.P.C. the two accused persons deserve to be punished with rigorous imprisonment for three years. For having committed the offence under Section 4 of the Dowry Prohibition Act, the sentence of six months rigorous imprisonment would meet the ends of justice.
62. In the net result, we allow the Government Appeal. We set aside the acquittal recorded by the trial court and convict the two accused respondents, namely Satya Narain Tiwari alias Jolly and Smt. Rani alias Bhuvaneshwari under Sections 304B I.P.C. with sentence of life imprisonment, under Section 498A I.P.C. with sentence of three years rigorous imprisonment and under Section 4 of Dowry Prohibition Act with six months rigorous imprisonment. The substantive sentences of imprisonment shall run concurrently. The two accused respondents Satya Narain alias Jolly and Smt. Rani alias Bhuvaneshwari Devi are on bail. The Chief Judicial Magistrate, Farrukhabad shall cause their to be arrested and lodged in jail to serve out the sentences passed against them. Criminal Revision stands disposed of accordingly.
63. Certify the judgment to the court below for reporting compliance to this Court within two months from the date of receipt.