Karunesh Tiwari vs State Of U.P

Heard Sri Arshad Siddiqui assisted by Sri Devanshu Pratap Singh, learned counsel for the appellant and Sri Arunendra, learned Additional Government Advocate for the State.

The instant Criminal Appeal under section 374(2) Code of Criminal Procedure, 1973 (hereinafter referred to ‘Cr.P.C.’) has been filed against the judgment and order dated 23.05.2018 passed by learned Additional Sessions Judge (F.T.C.) Court No. 36 Barabanki in Session Trial No. 251 of 2014 (State Vs. Karunesh Tiwari and Others) arising out of Case Crime no. 04 of 2014, Police Station Asandra District Barabanki, whereby the trial court convicted the appellant-Karunesh under Section 304-B of the Indian Penal Code (hereinafter referred as ‘IPC’) and sentenced him to undergo imprisonment for life; under Section 498-A of IPC and sentenced him to undergo rigorous imprisonment of 3 years and a fine of Rs.10,000/-and under Section 4 of the Dowry Prohibition Act and sentenced him to undergo 2 years of rigorous imprisonment and a fine of Rs. 5000/-

The prosecution case in brief as adumbrated in the written report (tahrir, Ex. Ka-1) submitted by the complainant Shiv Kumar Mishra (P.W.-1), is that he had solemnized the marriage of his daughter, Suneeta Devi, about 5 years prior to the incident with the accused Karunesh Tiwari, with sufficient gifts and dowry as per his capacity. After marriage, the husband Karunesh Tiwari, father-in-law Mata Badal Tiwari, brothers-in-law Munna and Anjani, mother-in-law (wife of Mata Badal) and sisters-in-law Pooja, Rekha and Jyoti persistently demanded an additional dowry of Rs.1,00,000/- and a motorcycle. The deceased conveyed about these ongoing demands and the physical abuse being endured by her to her father during her visits but he pacified her citing his poor financial condition. On January 08, 2014, at about 04:00 PM, all the accused persons allegedly burnt her to death on account of non-fulfillment of the dowry demand. Later that night, about 03:00 AM, Mata Badal informed the complainant over the phone that his daughter was ill. Upon reaching the marital home, the complainant found Suneeta lying dead with severe burn injuries.

Upon receipt of the written report submitted by the complainant-Shiv Kumar Mishra at Police Station Asandra District Barabanki, on January 09, 2014, at 09:30 AM, a Chik FIR No. 03/2014 (Ex. Ka-11) was registered as Case Crime No. 04/2014 under Sections 498-A and 304B of IPC and Sections 3/4 of the Dowry Prohibition Act. The investigation was assigned to the Circle Officer of Ram Sanehi Ghat. The Investigating Officer (hereinafter referred as ‘IO’) recorded the statement of the complainant under Section 161 of the Cr.P.C., visited the place of occurrence and prepared the site plan (Exhibit Ka-3). Inquest proceedings (Panchayatnama, Exhibit Ka-5) were conducted on 09.01.2014 at about 11:30 after which the dead body was sealed and dispatched for post-mortem examination. The post-mortem was conducted at District Hospital, Barabanki on January 09, 2014 by Dr. Vinod Chandra Pandey (PW-3) alongwith Dr. Brijesh Kumar Srivastava. The I.O. recorded the statements of various prosecution witnesses, neighbors and police personnel, collected the post-mortem report and concluded the investigation.

Upon completing the investigation, finding prima facie sufficient evidence against the accused persons, the Investigating Officer submitted the Charge Sheet (Exhibit Ka-4) on April 09, 2014 against Karunesh Tiwari, Mata Badal Tiwari, Girish Tiwari @ Munna, Smt. Savitri Devi and Kumari Pooja under Sections 498-A and 304-B of the IPC and Sections 3/4 of the Dowry Prohibition Act before the competent Magistrate court. The involvement of the named co-accused Anjani, Rekha and Jyoti was found false during the course of investigation.

The Chief Judicial Magistrate, Barabanki took cognizance of the offences. In compliance of Section 207 of the Cr.P.C, copies of the police report and other prosecution documents relied upon, were furnished to all the accused persons. As the offence was exclusively triable by the Court of Session, the learned Chief Judicial Magistrate, vide order dated May 09, 2014, committed the Criminal Case No. 644/2014 (Crime No. 04/2014) to the Court of Sessions, Barabanki for trial, where it was registered as Session Trial No. 251 of 2014 and subsequently transferred to the Additional Session Judge/Fast Track Court No. 36, Barabanki.

On February 02, 2015, the trial court framed the charges against all five accused persons, namely, Karunesh Tiwari, Mata Badal Tiwari, Girish Tiwari, Smt. Savitri Devi and Kumari Pooja under Sections 498-A, 304-B and 302 of the IPC read with Section 34 of the IPC as well as Section 4 of the Dowry Prohibition Act. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried.

To prove its case, the prosecution examined six witnesses namely PW-1 Shiv Kumar Mishra (Complainant), PW-2 Rajesh Kumar Mishra, PW-3 Dr. Vinod Chandra Pandey, PW-4 Rajesh Tiwari Circle Officer, PW-5 Tehsildar Sanjay Singh and PW-6 Head Constable Ashok Kumar Mishra.

PW-1 Shiv Kumar Mishra, the complainant/father of deceased in his examination-in-chief deposed that he married his daughter Suneeta to Karunesh 5–6 years prior to her death. He stated that after marriage, the accused persons demanded an additional dowry of Rs.1,00,000/-cash and a motorcycle. His daughter disclosed these demands and harassment upon returning home. About one and half year prior to his testimony, Mata Badal telephonically informed him that Suneeta was ill but upon reaching her house, he found her dead from burn injuries.

PW-2 Rajesh Kumar Mishra, uncle of the deceased, deposed that Suneeta was married to Karunesh around 5 years before the incident. He stated that after 5–6 months of marriage, the accused demanded Rs.1,00,000/- and a motorcycle and harassed and beat her. He alongwith his brother visited Suneeta’s house and tried to persuade them to not to press such demands as they were financially weak. He further stated that few months prior to the incident, the deceased visited his house and informed him about the dowry allegations. On the day of the incident on receiving news of her death by burning, he accompanied his brother to the marital home and found Suneeta dead. This assured them that Suneeta was beaten and burned by the accused persons.

PW-3 Dr. Vinod Chandra Pandey who conducted the post-mortem of the deceased on January 09, 2014, deposed that he conducted the postmortem alongwith Dr. Brijesh Kumar Srivastava. He recorded an ante-mortem injury consisting of bluish mark measuring 8 cm x 2 cm on the deceased's body, located on the left side of the mid-neck, 6 cm below the ear. On dissection, ecchymosis was found. The entire body of the deceased was burnt. The soles of the feet were not burnt. Smell of kerosene oil was coming from the body. The skin of the body was burnt black and peeled off. There was no line of redness anywhere. On internal examination, the brain was congested and the tongue was protruded. The larynx and vocal cords were congested. There was a hyoid bone fracture. The trachea was congested. No soot particles were present in the trachea. The stomach contained approximately 100 ml of sticky food material. Gastric mucosa was normal. The liver, spleen, and kidneys were congested. The probable time since death was half a day to one day. He noted that the cause of death was asphyxia as a result of ante-mortem strangulation.

PW-4 Rajesh Tiwari Investigating Officer deposed regarding the steps taken during the investigation, including the statements recorded under Section 161 of the Cr.P.C., preparation of site plan (Exhibit Ka-3), collecting inquest and postmortem papers and submitting the chargesheet (Exhibit Ka-4) against five accused persons.

PW-5 Sanjay Singh Tehsildar deposed that under SDM orders, he conducted the inquest proceedings on January 09, 2014 at about 11:30 AM on the body of Suneeta Devi and prepared the panchayatnama (Exhibit Ka-5) alongwith photo lash, chitthi C.M.O., chitthi R.I., sample mohar and challan lash (Exhibit Ka-6 to Exhibit Ka-10).

PW-6 Head Constable Ashok Kumar Mishra deposed that on January 09, 2014, he recorded the Chik F.I.R. No. 03/2014 (Exhibit Ka-11) and made the corresponding General Diary entry (Exhibit Ka-12) based on the written report submitted by complainant Shiv Kumar Mishra.

The prosecution submitted and proved the following documentary evidence as Exhibit Ka-1 original written complaint (tahrir), Exhibit Ka-2 Postmortem Report, Exhibit Ka-3 Site Plan, Exhibit Ka-4 Chargesheet, Exhibit Ka-5 Inquest Report (Panchayatnama), Exhibit Ka-6 to Exhibit Ka-10 Associated inquest papers (R.I. Letter, C.M.O. Letter, Photo Lash, Specimen Seal and Challan Lash), Exhibit Ka-11 Chik FIR No. 03/2014, Exhibit Ka-12 General Diary entry of registration of Crime No. 04/2014.

In their statements recorded under Section 313 Cr.P.C., all the accused denied the prosecution allegations, claiming false implication due to misunderstanding and malicious motives. Accused Karunesh Tiwari stated that his marriage took place 8 years prior to the incident. He was working in Delhi at the time of the alleged incident and that his deceased wife was mentally weak and depressed leading her to commit the act herself. He alleged that the complainant demanded money not to file a report and upon refusal, falsely implicated them. Accused Mata Badal Tiwari stated that he lived separately from Karunesh and Suneeta due to a family partition prior to the incident and was in Lucknow for his wife's treatment. The other co-accused similarly pleaded separate living arrangements, complete innocence and absence from the place of occurrence.

In their support defence examined one witness DW.-1 Balram Panchayat Secretary, Banikodar who verified the certified copies of the Family Register (Exhibit Kha-1 and Exhibit Kha-2) to establish the separate living and house entries for Karunesh Tiwari (House No. 62-A) and Mata Badal Tiwari (House No. 62).

After hearing the counsel for the prosecution and the defense counsel, the learned trial court acquitted Mata Badal Tiwari, Girish Tiwari, Smt. Savitri Devi and Kumari Pooja of the charges leveled against them and convicted the accused-appellant-Karunesh Tiwari under Sections 498-A, 304-B of the IPC and Section 4 of the Dowry Prohibition Act.

Being aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence dated 23.05.2018, the appellant has preferred the instant criminal appeal before this Court.

The learned trial court upon a holistic appreciation of the evidence observed that the convict-Karunesh Tiwari had demanded the dowry and due to non-fulfillment of the same, cruelty had been caused by the convict. The medical evidence adduced by the doctor Vinod Chandra Pandey PW-3 conclusively established the cause of death was asphyxia as a result of antemortem strangulation. The trial court held that the incident took place inside the matrimonial home where the deceased resided with the appellant, but the appellant failed to explain the circumstances under which the victim was found dead under abnormal circumstances. Apart from this, the postmortem burns were also found on the body of the deceased, for which the accused-appellant could not explain the reason. The trial court further recorded a categorical finding that the defence plea raised by the appellant under section 313 of the Cr.P..C. that deceased suffered from mental illness was not substantiated by any documentary or medical evidence and in the given circumstances and evidence, the presumption under section 113-B of the Indian Evidence Act has also been invoked. Consequently, relying upon the circumstantial chain alongwith the medical evidence, the trial court convicted the accused-appellant for the offences under Sections 304-B, 498A of the IPC and Section 4 of the Dowry Prohibition Act.

Learned counsel appearing for the appellant submits that the learned trial court did not consider the facts, evidence and circumstances in correct perspective and passed the impugned judgment in mechanical and cursory manner. He further submits that the learned trial court also committed an error to partly rely on the testimony of the prosecution witnesses. On the same testimony, the other accused persons have been acquitted, while on the same set of the evidence, the appellant has been held guilty, which is contrary to law. He further submits that there is discrepancy with regard to glass-bangles of the deceased found at the time of inquest and postmortem report. He emphasized that marriage of the deceased was solemnized with the appellant nine years prior to the alleged incident. Prosecution could not prove it’s basic ingredients that the death of the deceased had occurred within seven years of her marriage. Apart from this, there is no iota of the evidence which may prove that the deceased was subjected to cruelty in relation to demand of dowry just soon before her death. From the statements of PW-1 and PW-2, this ingredient has not been substantiated. No direct demand of dowry is proved by adducing any cogent evidence. He further submits that there is general allegation in relation to demand of dowry. No specific allegation in respect of demand of dowry against appellant has been stated. The doctor, who conducted the postmortem of the body of the deceased, could not explain the duration of ante-mortem injury and he also failed to explain the interval of antemortem injury and postmortem injury of the deceased. He further submits that the investigation was not conducted in proper manner and the investigation is faulty. There are major discrepancies and inconsistencies in the testimony of prosecution witnesses. He further submits that despite of the said facts, the learned trial court relied upon them. He also submits that the learned trial court has wrongly ignored the defence evidence and has given weightage to the prosecution evidence, which is not of a sterling quality. On that basis, the learned counsel for the appellant submits that the findings and observations given by the trial court with regard to conviction of the appellant is perverse, which is liable to be set aside and the present appeal is liable to be allowed.

To substantiate his contention, learned counsel for the appellant has placed reliance on the judgment of Chabi Karmakar Vs. State of West Bengal [2024 SCC Online SC 2433], wherein, Hon’ble Apex Court held that conviction under Section 304-B of the IPC for dowry death requires the prosecution to prove cruelty or harassment in connection with the demand of dowry soon before death of the deceased and death must occur within seven years of the marriage, which must be caused by burns, bodily injury or under unnatural circumstances.

He further relied upon the judgment of Hon’ble Apex Court rendered in the case of Munni Devi Vs. State of Uttar Pradesh reported in 2026 SCC OnLine SC 256, wherein Hon’ble Apex Court held that general allegations without specific instances are insufficient to prove charge under Section 304-B of the IPC. It is required to prove cruelty or harassment in connection with demand of dowry soon before death.

Per contra, learned AGA for the State submits that the learned trial court has passed the impugned judgment and order after considering the entire facts, evidences of both the sides and circumstances of the case, which is in consonance with the law and there is no infirmity with regard to findings and observations made against the appellant. He further submits that sufficient evidence has been adduced for proving the marriage of the deceased with the appellant and demand of dowry made by him. By evidence, it has been established that the death of the deceased occurred within seven years of her marriage. He also submits that with regard to demand of dowry and causing cruelty, sufficient evidence has been adduced. He also emphasized that as per medical evidence, death of the deceased was caused by antemortem strangulation and thereafter she was burnt which is substantiated by the evidence of the doctor. The appellant convict could not explain the circumstances under which the deceased was set on fire after pouring kerosene oil. He also submits that the defence witness, namely, Balram DW-1, was examined by the accused persons to establish that remaining accused persons were living separately and the learned trial court after relying on the evidence, acquitted the remaining accused persons from the charges levelled against them. He further submits that the learned trial court found that the death of the deceased occurred under abnormal circumstances in her matrimonial home within 7 years of her marriage due to non-fulfillment of dowry of demand. Thus, there is no illegality or perversity in the impugned judgment and order and the appeal being devoid of merits is liable to be dismissed.

To fortify his argument, learned AGA has placed reliance on the judgment of Hon’ble Supreme Court given in the case of Satya Narayan Tiwari @ Jolly and others Vs. State of U.P. reported in 2010 AIR SCW 7144. In this case, death of the deceased was caused by strangulation and then by burning. Hon’ble Apex Court found that it was impossible to believe that this was a case of suicide and it was a clear case of murder but charge under Section 302 of the IPC was not levelled. Therefore, upon proving the ingredients of Section 304-B of the IPC, Hon’ble Apex Court affirmed the judgment of trial court.

Before entering into the evidence on record, it is expedient to extract the relevant laws.

Having extracted the relevant provision, we now proceed to analyze whether the death of the deceased was caused by burn or by bodily injury or otherwise than in normal circumstances?

As per medical report, Doctor Vinod Chandra Pandey PW-3 had conducted the autopsy of the deceased-Sunita Devi on 09.01.2014 and following injuries were found on her body:

All over body with blackening, peeling, bursting of skin, no line of redness present in between burn and unburnt skin, scalp hair, axillary hair and pubic hair all burnt.

It is not a case of either of the parties that death of the deceased occurred in normal circumstances. Appellants made endeavour to impress upon the court that death of the deceased was suicidal, as reflects from the site plan Exhibit Ka-3 that the deceased was found dead inside the house. Outside of the house, the place where broken piece of the door and an Axe was found is denoted to letter ‘D’ which substantiates the contention of the learned counsel for the appellant that the room where deceased committed suicide was bolted from inside and she was brought out after breaking the door with the Axe.

Upon considering this contention, it does not reveal from the cross-examination of any of the prosecution witnesses that deceased herself closed the room from inside, bolted it and thereafter committed suicide. It is also not suggested from any of the witness of the fact. Sanjay Singh, Tehsildar, Ram Sanehi Ghat PW-5, who conducted the inquest proceedings, also did not state a single word in this regard that the deceased was found inside the room and after breaking the door she was brought out. Rajesh Tiwari, Circle Officer PW-4, who investigated the case, had proved the site plan Exhibit Ka-3 and deposed that he has indicated the broken piece of door on ‘B’ point, but he could not take all those articles in his possession. Even in the statement given by the appellant under Section 313 of the Cr.P.C., he could not state in specific terms in this regard. He had only stated that the deceased was suffering from depression and she was mentally retarded, consequently, she herself had caused the incident. He also stated that when funeral of the dead body of deceased was taking place, then the complainant made illegal demand of money which could not be fulfilled by him, consequently, the complainant called the police and after arriving, the police took away the dead body of the deceased from funeral pyre.

Now question arises that if funeral ceremony was organized, funeral pyre was prepared on which the dead body of deceased was lying and it was set ablaze then as to how the body was reeking of kerosene. Obviously, no funeral takes place with kerosene. Further, as to why the funeral pyre point was not asked from the prosecution witnesses in their cross-examination so that their answer may come before the court? It is also surprising that Investigating Officer had shown the broken piece of door and an Axe lying outside the house, but he did not find any funeral pyre where deceased was put for cremation and it was also not asked by the appellant from the Investigating Officer on cross-examination.

Moreover, it is also very surprising that mark of the contusion was found on the throat of the deceased and doctor has opined that cause of death was strangulation and postmortem burn injury was also found on the body of the deceased, then how it is possible for deceased to cause strangulation herself and thereafter put her dead body into fire. Therefore, stand taken by the appellant with regard to commission of the suicide is not substantiated.

Here it is also made clear that whether death occurred due to suicide or it may be homicidal, both being covered under abnormal circumstances, it is established that death of the deceased occurred otherwise than in normal circumstances, which is substantiated by her antemortem and postmortem injuries found at the time of autopsy and proved by the doctor.

Now we have to see as to whether death of the deceased was caused within 7 years of her marriage. It is emphasized on behalf of the appellant that death of the deceased occurred after 9 years of her marriage, while the State-respondent has emphasized that her marriage took place prior to 7 years of her death.

Thus, there is a dispute between the parties with regard to duration of the marriage of the deceased. On perusal of the record, it reveals that in the FIR it is averred that deceased-Sunita was married with Karunesh Tiwari 5 years prior to lodging of the FIR dated 09.01.2014.

The deceased’s father Shiv Kumar PW-1 deposed that marriage of his daughter Sunita was solemnized with Karunesh 5 to 6 years prior to the incident and after two years of the marriage Gauna ceremony was organized. On cross-examination, he has stated that deceased-Sunita had two sons, age of elder son is 5 to 6 years who were born two years after Gauna. On that basis, the appellant made endeavor to controvert the fact that death of the deceased did not occur within the seven years of her marriage. However, it is pertinent to mention here that on suggestion given by the appellant, this witness clearly denied that marriage of the deceased with appellant Karunesh was of eight years prior to the alleged incident.

Deceased’s uncle Rajesh Kumar Mishra PW-2 also deposed that deceased was married to Karunesh Tiwari five years prior to the alleged incident. On his cross-examination, he had stated that at the time of settlement of the marriage, he was present in Surat but no suggestion has been given to the effect that marriage of the deceased was solemnized 9 years prior to the incident. Although it is true that with regard to marriage, no documentary evidence has been adduced from either side; only verbal statements have been given by both the sides, but the fact with regard to marriage of the deceased, which is inserted by the prosecution, could not be controverted by the appellant through any cogent and reliable evidence. In this regard, the learned trial court also found that the marriage of the deceased with Karunesh was solemnized prior to 7 years of her death. Thus, we find no infirmity in this finding.

Now we come to the point which is related with the cruelty committed by the appellant with the deceased. In the FIR it is averred that one lakh rupees and a motorcycle was demanded as dowry by the appellant for the deceased and for non-fulfillment, she was subjected to cruelty and she was physically and mentally tortured.

PW-1 Shiv Kumar deposed that when her deceased daughter went to in-laws house after Vidai ceremony, dowry demand of Rs. 1,00,000/-and a motorcycle was made. He further deposed that when his deceased daughter returned back to parental house, then she told about demand of dowry but he always sympathized to the deceased and made request to in-laws that he is economically weak but he is trying to make arrangements, but the accused persons were not satisfied with his words and they continuously demanded the dowry and used to torture the deceased. Here it is to be made clear that demand of dowry can be placed at three stages: before marriage, during marriage and after marriage. Therefore, it is not necessary that if prior to marriage, demand of dowry was not placed, then it is not possible to demand the dowry on later stages. In his cross-examination, this witness admits that at the time of marriage no transaction was made and at that time accused persons were satisfied. However, after the vidai, when her deceased daughter visited parental house, then she told him about demand of a motorcycle and one lakh rupees, which was assured to them. On being cross-examined, he has denied the suggestion that accused persons never demanded the dowry from him and the deceased.

Deceased’s uncle Rajesh Kumar Mishra PW-2 has also stated that after Vidai of the deceased, accused persons made dowry demand of rupees one lakh and one motorcycle, which was complained by deceased-Sunita when she visited her parental house. Then the deceased’s father went to the in-laws house of the deceased and made request that they are unable to fulfill their demand, but they did not agree and continued to torture the deceased for dowry. On his cross-examination, although he has admitted that at the time of marriage, demand of dowry was not made by the accused person, but when deceased visited her house, then she told that accused persons were demanding dowry. On cross-examination, he had denied the suggestion of the accused persons with regard to no demand of dowry.

Learned trial court thoroughly scrutinized the testimony of the witnesses in this respect and found that prior to the incident, the deceased was subjected to cruelty and harassment by the appellant in connection with the demand of dowry. Here it is also notable that it is insignificant that any person who was not in a capacity to give the dowry, from him the demand of dowry cannot be placed, since it is the state of mind of the persons who are greedy and lured, they can at any occasion raise the demand of dowry. PW-1 Shiv Kumar has also stated that in the wedding ceremony, some transaction remained pending. It also indicates that although in no specific term the dowry was demanded prior to the marriage but some transaction in the shape of dowry had taken place and some articles remained to be given them. Consequently, after Vidai, the accused-appellant made demand of dowry in the shape of a motorcycle and one Lakh rupees which could not be fulfilled by the father of the deceased. Thus, this fact is corroborated by the prosecution witnesses and from the record it corroborates that the deceased was subjected to harassment and maltreatment on non-fulfillment of dowry demand, which was not only mental but also physical. Thus, we find no perversity in the observations and findings given by the trial court with regard to those ingredients.

Now we are moving ahead to see whether from the evidence it is established that alleged cruelty or harassment is shown to have been meted out to the deceased soon before her death. In the FIR, it is averred that the deceased used to tolerate the cruelty and harassment committed by accused in relation to demand of dowry which subsisted till her death.

Deceased’s father Shiv Kumar PW-1 deposed that demand of dowry was continued till the death of deceased. He further stated that four to five months prior to the alleged incident, when his deceased daughter visited the parental house, she told him about cruelty being done in connection with demand of dowry. On cross-examination, he reiterated that demand was continued till the death of the deceased and her deceased daughter Sunita always made request to fulfill the demand of one lakh rupees and one motorcycle, which was assured by him. He denied all the suggestions with regard to the fact that the deceased was not subjected to cruelty in connection with the demand of dowry.

Here it is expedient to mention that there is no time limit of ‘soon before’ death. It doesn't require the immediate demand before the death but there should be a reasonable time gap.

Section 304-B IPC states that:

Thus, the words "soon before" appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words "soon before" is, therefore, important. The question is how "soon before"? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or dear ones. It can be depriving her of economic resources or essentials or humiliating a woman. It can be by giving threats of injury to her or her near ones and it can be of not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions, we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.

In this connection we may refer to the judgment of the Apex Court in Kans Raj Vs. State of Punjab reported in [(2000) 5 SCC 207], where the Court considered the term "soon before". The relevant observations are as under:

In view of the law propounded by the Apex Court and on the perusal of record, it also reveals that the deceased’s uncle Rajesh Kumar Mishra PW-2 has stated that one month prior to death of the deceased, she visited her parental house and told about cruelty and harassment caused to her in relation to demand of dowry. Here it is also made clear that it is not a case of the accused-appellant that deceased did not visit her parental home 4 to 5 months and 1 month prior to alleged incident. Learned trial court also dealt with these ingredients in detail and findings and observation given in this regard are in consonance with the testimony of the witnesses and we find no perversity in the findings. Thus this ingredient has also been established.

Now the prosecution has primarily proved all the ingredients of Section 304-B of the IPC and with regard to demand of dowry then presumption under section 113-B of the evidence act fully operates. Although this presumption is rebuttable which may be rebutted by way of cross-examination of the prosecution witnesses, by way of giving statement under Section 313 of the Cr.P.C. or adducing the defence evidence. In cross-examination of the PW-1, it is suggested by the side of appellant that deceased was suffering from depression, therefore, she herself committed suicide. The same suggestion was also given to PW-2, which he also denied.

Once the prosecution fundamentally established that the death was homicidal and occurred within the exclusive privacy of the matrimonial residence occupied solely by the appellant and the deceased, the statutory presumption under Section 106 of the Indian Evidence Act (corresponding to Section 109 of the Bharatiya Sakshya Adhiniyam, 2023) comes into play, which mandates:

Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts the Court can always draw an appropriate inference.

In this context, the principle laid down by the Hon'ble Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 is directly applicable, wherein the Hon'ble Supreme Court observed as under:

Emphasis by Court.

It is very surprising and ridiculous that in case of suicide how the mark of strangulation occurred on the throat of the deceased and her body was burnt, as found by the doctor during autopsy of the deceased. Although accused-appellant had stated in his statement under Section 313 of the Cr.P.C that body of deceased was put on funeral pyre and the police lifted and took away her dead body from the funeral pyre but this fact was not substantiated by any of the prosecution witnesses. Even the Investigating Officer did not find any such pyre. There is one more thing which creates doubt on the posed conduct of the accused-appellant that as per his statement, the deceased herself had committed suicide, then as to why without waiting for the deceased’s parents’, he started the proceeding of funeral and did not inform the police. This circumstance also goes against him. As we have discussed earlier that it is not possible for the deceased to have herself put pressure on her throat by putting her hands and after death she managed to set her body on fire. Therefore, the plea taken by the accused persons is of no significance.

Hon’ble Apex Court in the case of Surinder Singh Vs. State of Haryana reported in [(2014) 4 SCC 129] held as under:

In so far as the contention of learned counsel for the appellant is concerned that on the same set of evidence the remaining accused persons were acquitted, then it is not possible to convict the appellant on the same evidence, this contention has no force. The appellant is husband of the deceased and from the record, it is proved that other remaining accused persons were his relatives, who were living separately from the appellant and the deceased, as proved by the evidence adduced towards accused persons. Therefore, it was the duty incumbent upon the appellant to explain the circumstances in which the deceased was found dead but the accused failed to give satisfactory explanation in this regard and presumption of Section 113-B of the Evidence Act could not be rebutted by him by adducing cogent, clinching and convincing evidence.

PW-1 has stated that at the time of alleged incident, his son-in-law, the appellant was present in the village. The appellant could not produce any evidence with regard to mental depression and ailment of the deceased. The false statement as has been given by the accused-appellant under Section 313 of the Cr.P.C. is also relevant in view of the provisions contemplated under Section 8 of the Evidence Act which also points out to his guilt.

The learned trial court, in the impugned judgment, has recorded detailed, cogent and well-reasoned findings while holding the appellant guilty of the offence punishable under Sections 304-B, 498-A of the IPC and Section 4 of the Dowry Prohibition Act. Thus, upon a holistic evaluation of the entire facts, oral and documentary evidence, material exhibits, and expert medical testimony, we find no illegality, infirmity, or perversity in the findings recorded by the learned trial court. Consequently, no interference is warranted by this Court with the impugned judgment of conviction.

The present criminal appeal is dismissed. The conviction and sentence of the appellant under Sections 304-B, 498-A of the IPC and Section 4 of the Dowry Prohibition Act are affirmed.

Pending application(s), if any, stand disposed of accordingly.

The accused is in jail. The trial court record be sent back to the court concerned alongwith a copy of the judgment of this appeal for necessary compliance.