JUDGMENT : (Nalin Kumar Srivastava, J.) 1. Since these appeals have been filed by the accused appellants against the same judgement and order, they have been heard together and are being disposed of by a common order. 2. Feeling aggrieved with the judgment and order dated 9.9.2011 passed by Additional Sessions Judge, Court No.13, Allahabad in S.T. No. 618 of 2006 arising out of Crime No. 193 of 2003 under Section 304-B/34, 498-A/34 I.P.C. and 4 D.P. Act, P.S.-Kydganj, Allahabad, whereby the appellants have been convicted and sentenced under Section 304-B/34 I.P.C. for 10 years rigorous imprisonment, under Section 498-A/ 34 I.P.C. for 2 years rigorous imprisonment with a fine of Rs.2,000/-each with default clause and under Section 4 D.P. Act for 1 year simple imprisonment with a fine of Rs.1,000/-each with default clause and all the sentences were to run concurrently, the present criminal appeals have been preferred by convict-appellants 1. Ram Ji, 2. Smt. Sumari Devi, 3. Mahendra Kumar, 4. Dwarika Prasad, 5. Ram Prasad, 6. Smt. Manju, 7. Smt. Manisha, 8. Smt. Urmila and 9. Smt. Kusum. 3. Out of nine convict appellants, convict Ram Ji and Dwarika Prasad have died and reports regarding their death are available on record. Hence, the appeals qua convict appellants Ram Ji and Dwarika Prasad stand abated. 4. The prosecution story as unfolded in the FIR is that Urmila, the daughter of the informant Chote Lal was married with Ram Ji s/o Shyam Sundar on 11.11.2003 and when she came to her matrimonial house after marriage a demand for one scooter and Rs.50,000/-cash was made by her in-laws as an additional dowry and she was also threatened for dire consequences in case the demand made by the in-laws was not satisfied. She came back to her parental house and when on 27.11.2003 she again went to her matrimonial house she was tortured and burnt by pouring hot mustered oil, which resulted into the burning of her right hand and leg; On her telephone call, Ghanshyam, the son of the informant and his son-in-law Chaman Kumar went to the house of her in-laws on 3.12.2003 and the deceased was taken to her parental house and when they were taking her to the hospital on 4.12.2003, she died on way at 7 am. 5. 5. On the written report of informant FIR was lodged on 4.12.2003 at 10.00 am against 9 named accused persons and investigation started. 6. Inquest proceedings were performed by Tehsildar Bara, Brajendra Singh on 4.12.2003 and subsequently her dead body was examined by Dr. A.K. Mehrotra on 6.12.2003, who prepared the autopsy report and found several ante-mortem injuries over the body of the deceased and the cause of death was found coma as a result of ante-mortem head injury. 7. The matter was investigated initially by Shri Prakash Swaroop Pandey, Dy. S.P. EOW, who during course of investigation inspected the 3 place of occurrence and prepared site plan, made arrest of accused persons and also proceeded to interrogate the witnesses of this case and subsequently the investigation was transferred to Shri Rajesh Kumar, C.O. City, Firozabad, who completed the rest formalities of the investigation and after collecting sufficient evidence submitted charge sheet to the Court. 8. The offence being exclusively triable by the Sessions Court was committed to the Court of Sessions by the Magistrate where charges under Section 498-A/34, 304-B/34 I.P.C. and Section 3/4 D.P. Act were framed against all the charge sheeted nine accused persons. They denied all the charges and claimed for trial. 9. To bring home the charges against the accused-appellants the prosecution relied upon the oral evidence and in all as many as 10 prosecution witnesses were examined. P.W.1 Chote Lal, informant/ father of the deceased, P.W.2 Ghanshyam Kumar, brother of the deceased, P.W.3 Km. Shabnam, sister of the deceased and formal witnesses P.W.4 Dr. Veerendra Singh, medical officer, P.W.5 Crt. Mhr. Rampati Singh, P.W.6 Dr. R.D. Ram, P.W.7 Rajesh Kumar, C.O. City, second I.O, P.W.8 Dy. S.P. Prakash Swaroop Pandey, first I.O., P.W.9 Brijendra Dwivedi, Tehsildar and P.W.10 S.I. Surendra Nath Dubey, the scribe, have been produced by the prosecution. 10. In support of the oral evidence the prosecution has relied upon the documentary evidence as well. Written report Ex.Ka-1, Inquest report Ex.Ka-2, marriage invitation cards Ex.Ka-3 and Ex.Ka-4, photographs Ex.Ka-5 to Ex.Ka-9, first post mortem report Ex.Ka-9/1, GD. 10. In support of the oral evidence the prosecution has relied upon the documentary evidence as well. Written report Ex.Ka-1, Inquest report Ex.Ka-2, marriage invitation cards Ex.Ka-3 and Ex.Ka-4, photographs Ex.Ka-5 to Ex.Ka-9, first post mortem report Ex.Ka-9/1, GD. Ex.Ka-10, second post mortem report Ex.Ka-11, charge sheet-Ex.Ka-12, site plan Ex.Ka-13, memo of taking photo and video of marriage ceremony Ex.Ka-14, report to CMO Ex.Ka-15, Report of Tehsildar Ex.Ka-16, report to R.I. Ex.Ka-17, letter by Tehsildar to C.M.O. Ex.Ka-18, challan lash Ex.Ka-19, photo nash Ex.Ka-20, chick FIR Ex.Ka-21, copy of nakal rapat regarding registration of case Ex.Ka-22 are produced as documentary evidence. Shri Rajesh Kumar Yadav, C.O. Sirathu, District Kaushambi was produced as C.W.1, who has proved the fact, the investigation in this case was performed by C.O. City-III, Shri Rajesh Kumar, who as per his information is posted at Firozabad at present. 11. The incriminating circumstances appearing in evidence were put to the accused persons after closure of the prosecution evidence in their statement under Section 313 Cr.P.C. wherein they made a specific denial of the prosecution case, claimed the prosecution evidence as false and fabricated and pleaded for defence evidence. A specific defence was taken by the accused Ramji, the husband, who stated in his statement under Section 313 Cr.P.C. that no conjugal relation was made between the couple and the deceased stayed at his home for about 2 days only and then her family members took her with them. The bidaai of his wife had to take place on 7.12.2003 but they got information of her death prior to that. Subsequently he came to know that his wife was entangled with some other person and was making preparation to go with him but when the matter was disclosed to her family members she was bitterly assaulted by them which resulted into her death. The accused persons were falsely implicated in this matter as the family members of the deceased are active in politics and they have a lot of influence upon the police and local leaders. Besides it a plea for separate living was taken by the co-accused persons. 12. To strengthen the defence version D.W.1 Vinod Kumar, D.W.2 Smt. Usha Devi and D.W.3 Jagdish Prasad have been examined as defence witnesses by the accused persons. 13. Besides it a plea for separate living was taken by the co-accused persons. 12. To strengthen the defence version D.W.1 Vinod Kumar, D.W.2 Smt. Usha Devi and D.W.3 Jagdish Prasad have been examined as defence witnesses by the accused persons. 13. The trial Court after hearing at length both the sides and after scrutinizing and analyzing the evidence on record passed an order of conviction against all the 9 accused persons and they all were convicted under Sections 304-B/34, 498-A/34 I.P.C. and Sec. 4 D.P. Act and were sentenced as mentioned herein above. 14. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Ms. Neeja Srivastava, learned counsel for the appellants and Sri Kamal Dev Rai and Sri A.K. Mishra, learned A.G.A. for the State. 15. Criminal Appeal No. 6710 of 2011 was filed by appellant Ram Ji, the husband and Smt. Sumari Devi, the mother-in-law and Criminal Appeal No. 5490 of 2011 was preferred by Mahendra Kumar, brother-in-law (Jeth), Dwarika Prasad, uncle of husband, Ram Prasad, uncle of the husband, Smt. Manju, aunt of accused Ram Ji, Smt. Manisha and Smt. Urmila sister-in-law (Jethani) and Smt. Kusum, sister-in-law (Nand) of the deceased. Prosecution Evidence 16. To start with the appreciation of evidence on record the examination of P.W.1 Chote Lal, the informant/ father of the deceased is to be scrutinized. P.W. 1 in his testimony has corroborated the prosecution case as disclosed in the FIR. He has narrated that several articles were given along with cash rupees in the marriage of his daughter with Ram Ji on 11.11.2003 but her in-laws were not happy with the dowry given in the marriage and on her stay to her matrimonial house for 5-6 days only the deceased was subjected to cruelty and harassment for demand of additional dowry and the said story was disclosed by her to her mother blaming all the accused persons/ in-laws for the said harassment and demand. The deceased was sent again to her in-laws’ house on 27.11.2003 but this time she was bitterly assaulted by her in-laws and hot mustard oil was poured upon her causing burn injuries to her legs and hands. The deceased was sent again to her in-laws’ house on 27.11.2003 but this time she was bitterly assaulted by her in-laws and hot mustard oil was poured upon her causing burn injuries to her legs and hands. On a telephone call made by the deceased he sent his son-in-law and son to her matrimonial house on 3.12.2003 to take her back and when she came back she was unable to speak even and reported her family members about the serious assault made upon her by her in-laws. They also found her face swollen, having blackening in the back of chest and marks of injuries over her whole body. When she was being taken by an auto for treatment next day on 4.12.2003 she collapsed near the Glass factory. P.W.1 has also proved written report Ex.Ka-1, which he dictated to Shiv Shankar Gupta and on the basis of which FIR was lodged. He has also proved inquest report Ex.Ka-2 and has affirmed his presence at the time of inquest proceeding. 17. P.W. 2 Ghanshyam Kumar is the brother of the deceased. Corroborating the testimony of P.W.1. he has also given his statement in the same fashion and has proved this fact that his sister had been under continuous torture made by her in-laws for demand of dowry and when on her telephone call he along with his brother-in-law went to her matrimonial house on 3.12.2003 she again disclosed the factum of assault made by her in-laws and she was not in a fit state of health. She was brought to her parental house and the next morning she became serious. They took her for treatment by a tempo but his sister who was having several injuries over her body died near a glass factory. P.W.2 has proved the marriage invitation cards as Ex.Ka-3 and Ex.Ka-4 and photographs at the time of jaimal as Ex.Ka-5 to Ex.Ka-7 and photographs taken after her death as Ex.Ka-8, Ka-9. 18. P.W.3 Km. Shabnam is the sister of the deceased, who has corroborated the statements made by P.W.1 and P.W.2 and has repeated the story of demand of dowry and causing cruelty and harassment to her sister followed by serious assault by her in-laws for demand of one scooter and Rs.50000 cash as additional dowry. 19. Apart from the aforesaid witnesses of fact the prosecution has also relied upon the testimony of formal witnesses. 20. 19. Apart from the aforesaid witnesses of fact the prosecution has also relied upon the testimony of formal witnesses. 20. P.W. 4 Dr. Veerandra Singh, medical officer, who has conducted the autopsy of the body of the deceased on 05.12.2003 at 3:15 p.m. has proved the first post mortem report as Ex.Ka-9 and has also identified the signature of Dr. Pradip Tondon, who accompanied him in the proceedings of post mortem of the deceased. P.W.4 at the time of post mortem found following injuries over the body of the deceased: (i) Abrasion 1 cm x 1 cm on left forearm post aspect 2.5 cm below elbow. (ii) Abrasion 1 cm x 1 cm on medial aspect of left elbow. (iii) Abrasion 1 cm x ½ cm on dorsal aspect of left hand near base of middle finger. (iv) Abrasion 1 cm x 1 cm on outer part of left forearm 1 cm above wrist joint. (v) Abrasion 1 cm x 1 cm on anterior aspect of right leg 4 cm below knee joint. (vi) Abrasion 1 cm x ½ cm on outer part of right ankle joint. (vii) Abrasion 2-1/2 cm x ½ cm on back of chest left side just medial to shoulder blade. (viii) Contusion 8 cm x 4 cm on the scalp left side 10 cm above left eyebrow and 2 cm behind to midline. 21. P.W.4 has stated that the death of the deceased was caused due to ante mortem head injury followed by coma. 22. P.W.5 Cons. Rampati Singh is the scribe of G.D. He has narrated in his testimony that earlier the case was registered as case crime no. ‘Nil’ of 2003 but since the place of occurrence was falling in the area of P.S. Kydganj he marked a crime number to it and prepared G.D. by his signature. He has proved the copy of G.D. as Ex.Ka-10. 23. P.W.6 Dr. R.D. Ram has proved the factum of second post mortem and he has explained that earlier the post mortem of the deceased was conducted on 5.12.2003 by Dr. Veerendra Singh and Dr. P. Tondon and subsequent post mortem was performed by him by order of C.M.O. on 6.12.2003 at 4:45 p.m. and in the panel he was authorized along with Dr. A.K. Mehrotra and Dr. D.K. Srivastava to perform the post mortem. P.W.6 who proves the second autopsy report as Ext. Veerendra Singh and Dr. P. Tondon and subsequent post mortem was performed by him by order of C.M.O. on 6.12.2003 at 4:45 p.m. and in the panel he was authorized along with Dr. A.K. Mehrotra and Dr. D.K. Srivastava to perform the post mortem. P.W.6 who proves the second autopsy report as Ext. Ka-11 found following injuries over the body of the deceased: (i) Abraded wound 1 cm x 1 cm on the dorsum of left forearm 2.5 cm below the elbow. (ii) Abraded wound 1 cm x 1 cm on the medial epicondyle of left elbow. (iii) Abraded wound 1 cm x 1/2 cm on the dorsom of left hand 4 cm proximal to the base of middle finger 3 cm from the medial border of the hand. (iv) Abraded wound 1 cm x 1/2 cm on the lateral aspect of left forearm 1 cm proximal to wrist joint. (v) Abraded wound 1 cm x 1 cm on the front of the right leg 2 cm below tibial tuberosity. (vi) Abraded wound 1 cm x 1/2 cm on the lateral aspect of right ankle joint. (vii) Abraded wound 2.5 cm x 1 cm on the outer back of chest on left side. Just medial to the medial end of the spine of scapula. (viii) Contusion 8 cm x 4 cm on the scalp on left side 2 cm from midline 10 cm above the left eyebrow. He has opined that the death should have been caused 2 and ½ day before the post mortem and opined that due to ante mortem head injuries which resulted into coma, the death of the deceased occurred. He has also clarified that no difference was found between the first and the subsequent post mortem of the deceased. 24. P.W.7 Rajesh Kumar, C.O. city, Firozabad is the second I.O. of the case, who took over the investigation on 09.01.2004 and performed the remaining investigation of the case and on the basis of sufficient evidence submitted the charge sheet Ex.Ka-12 against all the 9 named accused persons of the case. 25. P.W.8 Prakash Swaroop Pandey is the first I.O of the case who has proved the proceedings of the investigation. He has also proved the site plan as Ex.Ka-13 and memo of taking photographs into possession as Ex.Ka-14. 25. P.W.8 Prakash Swaroop Pandey is the first I.O of the case who has proved the proceedings of the investigation. He has also proved the site plan as Ex.Ka-13 and memo of taking photographs into possession as Ex.Ka-14. He has further proved the factum of recording of the statement of the witnesses of fact and other relevant formal witnesses. Rival contentions 26. The impugned judgement and order passed by the learned Sessions Court has been assailed by the learned counsel for the appellants on various grounds. It has been vehemently submitted that the essential ingredients to constitute an offence under Section 304-B I.P.C. are completely missing in this case and the prosecution has miserably failed to establish the essential components to bring the matter within the purview of dowry death. 27. It is further urged that significantly in this case the death of the deceased lady has been occurred while she was present in her parental house amongst her own family members. It is further submitted that the evidence available on record explicitly shows that when the deceased was taken by her own family members from her matrimonial house she was in a fit and healthy condition but the family members of the deceased herself ill-treated and assaulted her causing grievous injuries which were proved fatal to her. It is further submitted that the prosecution has failed to show on the basis of the evidence of fact and medical evidence as well that the deceased came to her parental house in injured condition and the injuries whatsoever, found upon her body were the result of beating her violently by her own family members and the present appellants had nothing to do with that. 28. The impugned judgement has been assailed on another ground that the prosecution has come forward with an unnatural story that a demand of Rs.50,000/-and one scooter was made to the deceased by all the appellants, including all the family members of her husband viz. brother-in-law, Mahendra Kumar (Jeth), Sisters-in-law, Smt. Urmila and Smt. Manisha, uncle and aunt of husband, Ram Prasad and Smt. Manju, sister-in-law Smt. Kusum (married nand), mother-in-law Sumari Devi, and Dwarika Prasad (uncle) and Ram ji the husband as well. brother-in-law, Mahendra Kumar (Jeth), Sisters-in-law, Smt. Urmila and Smt. Manisha, uncle and aunt of husband, Ram Prasad and Smt. Manju, sister-in-law Smt. Kusum (married nand), mother-in-law Sumari Devi, and Dwarika Prasad (uncle) and Ram ji the husband as well. It is vehemently submitted that in this way all the family members of the husband of the deceased including his married sister, uncle and aunt have been falsely roped into the present case on the basis of omnibus allegations without any specific instance of their involvement in the alleged offence. 29. It is further submitted that the medical evidence does not corroborate the prosecution version in material terms and there are relevant contradictions between the evidence of fact and the medical evidence on record. On such grounds a prayer has been made for the acquittal of all the appellants by allowing the present criminal appeal. 30. Per contra, learned A.G.A vehemently opposed the contentions raised by the learned counsel for the appellants. It has been submitted that there is ample evidence on record to prove that the demand for additional dowry in the form of one scooter and Rs.50,000/-cash was continuously being made by all the appellants. It is further submitted that the essential element of 'soon before' to bring an offence under the cover of ‘dowry death’ has very well been proved by the witnesses of fact. The deceased was taken to her parental house same day when she was tortured by the appellants for the sake of additional dowry. It is also submitted that she was taken to her parental house in injured condition and the injuries were very severe and grievous in nature which ultimately proved fatal to her and the poor lady died just on the next day when she was being taken to the doctor by her family members. 31. It is also submitted that the conduct of the appellants from the very inception of the occurrence is also relevant to be taken into consideration. 32. The medical evidence on record stands in complete conformity with the deposition of the witnesses who are the family members of the deceased. It is also submitted that there is no perversity in the impugned judgement which is well reasoned and sentencing is also proper and the present criminal appeal is liable to be dismissed. Ingredients of Section 304-B I.P.C.- 33. It is also submitted that there is no perversity in the impugned judgement which is well reasoned and sentencing is also proper and the present criminal appeal is liable to be dismissed. Ingredients of Section 304-B I.P.C.- 33. At the very outset before analysing the evidence on record the essential ingredients to constitute an offence under Section 304-B are required to be taken into consideration. Section 304-B I.P.C. provides as hereunder: “304-B. Dowry death. --(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death”. 34. Further, the conditions for applying Section 498-A I.P.C. and Section 4 D.P. Act are also to be kept in mind which follow like this- “Section 498-A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine”. “Section 4 Dowry Prohibition Act, 1961 If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months”. 35. The definition of ‘dowry death’ envisaged under Section 304-B I.P.C. is exhaustive and the essential components to constitute an offence thereunder deserve to be observed which have been elucidated in umpteen of cases. Essentials of Section 304-B I.P.C.- 36. In Satveer Singh Vs. State of Punjab (2001) 8 SCC 633 relying upon the decision in Shanti Vs. State of Haryana (1991) 5 SCC 371 and Kansraj Vs. Essentials of Section 304-B I.P.C.- 36. In Satveer Singh Vs. State of Punjab (2001) 8 SCC 633 relying upon the decision in Shanti Vs. State of Haryana (1991) 5 SCC 371 and Kansraj Vs. State of Punjab (2000) 5 SCC 207 the Hon'ble Apex Court defined the essential components of Section 304-B I.P.C. which are as follows- (i) death of woman occurring otherwise than under normal circumstances, (ii) such death should be occurred within 7 years of her marriage and (iii) soon before her death she should have been subjected to cruelty and harassment and (iv) such cruelty and harassment should be in connection with any demand of dowry. When the above pre-requisitions are established the husband or his relatives who caused the deceased such cruelty and harassment shall be presumed to be guilty of offence under Section 304-B I.P.C. Conclusion- Death within 7 years of marriage 37. Death of the deceased within seven years of her marriage with Ram Ji (now dead) being an admitted fact needs no analysis of evidence over this issue. Death caused otherwise than under normal circumstances 38. The second ingredient necessary to establish an offence under Section 304-B I.P.C is that the prosecution has to show that the death of the lady occurred otherwise than under normal circumstances. The phrase “otherwise than under normal circumstances” may be taken to mean as to the death of the deceased was not a result of any usual course of life but the circumstances under which the death of the woman was caused should be apparently under suspicious circumstances. It should never be a result of natural death but the circumstances surrounding her death must be otherwise than normal circumstances. 39. The learned trial Judge in order to find out the truthfulness of the aforesaid fact relied upon the testimony of the witnesses of fact and formal witnesses and medical evidence as well available on record. 40. It should never be a result of natural death but the circumstances surrounding her death must be otherwise than normal circumstances. 39. The learned trial Judge in order to find out the truthfulness of the aforesaid fact relied upon the testimony of the witnesses of fact and formal witnesses and medical evidence as well available on record. 40. The most crucial point in the matter in hand is as to whether the deceased was brought to her parental house in an injured condition from her matrimonial house and injuries inflicted upon her body were the root cause of her death occurring just on the next day of the injuries caused or she was brought to her parental house in a healthy state of body and only after coming to her parental house she was belaboured by her own family members which was proved fatal to her. The Court has to find out whether she sustained injuries in her own parental house or she was already seriously injured when she was brought to her parental house. 41. The evidence on record on the said relevant issue is to be examined minutely to find out the guilt of the accused persons in connection with dowry death of the deceased. The FIR of this case consists of the allegation that when after Bidaai the deceased went to her matrimonial house on 27.11.2003 she was bitterly assaulted by all the named accused persons and was burnt over her right hand and legs by hot mustard oil which was poured upon her by her mother-in-law and elder sister-in-law (jethani) and when the incident was informed by the deceased on phone to her family members Ghanshyam, brother of the deceased and his brother-in-law (behnoi) went to her matrimonial house and took the deceased to her parental house on 3.12.2003 in the evening. 42. P.W.1 the informant/ father of the deceased in his statement recorded before the Court has deposed that on 27.11.2003 when his daughter went again to her matrimonial house she was beaten bitterly by her in-laws and her legs and hands were also burnt by pouring hot mustard oil upon her. 42. P.W.1 the informant/ father of the deceased in his statement recorded before the Court has deposed that on 27.11.2003 when his daughter went again to her matrimonial house she was beaten bitterly by her in-laws and her legs and hands were also burnt by pouring hot mustard oil upon her. P.W.2 Ghanshyam Kumar, the brother of the deceased is the person who had gone with his brother-in-law to the matrimonial house of the deceased and he states in his evidence that on receiving the phone call by her sister on 3.12.2003 informing of the injuries she sustained by her in-laws, he along with his brother-in-law went there and took her to her parental house. She was having serious injuries. 43. P.W.3 the sister of the deceased also affirms that when on 3.12.2003 the deceased was brought to her parental house she had seen several injuries upon her body. 44. P.W.4 Dr. Virendra Singh, who performed the first post mortem of the deceased has categorically stated that the death of the deceased was caused due to ante mortem head injury. He also found several injuries over the body of the deceased. 45. In the same fashion P.W.6 who performed the second autopsy of the dead body of the deceased also finds several injuries, eight in number over the body of the deceased and in his opinion the death of the deceased was caused due to coma as a result of ante mortem head injury. 46. The aforesaid set of evidence is capable of disclosing the number and nature of the injuries of the deceased but the most crucial point to be taken into account is whether the deceased was brought to her parental house already in a fit state of health and body and subsequently for some reasons she sustained injuries by her own family members or she was already injured when brought to her parental home. This issue arises on account of the defence case which was suggested by the defence during the course of cross-examination of the witnesses of fact. The defence has come forward with a definite case that the deceased was entangled with some one else and she never wanted to go to her matrimonial house but P.W.1, P.W.2 and P.W.3 the family members of the deceased denied of such suggestions. 47. The defence has come forward with a definite case that the deceased was entangled with some one else and she never wanted to go to her matrimonial house but P.W.1, P.W.2 and P.W.3 the family members of the deceased denied of such suggestions. 47. P.W.3 in her deposition further states that when after first bidai her sister came to her parental house she herself found some signs of injuries over her body which she disclosed before the I.O. as well. Further, she states that subsequently on 3.12.2003 when the deceased came to her house she herself found some injuries over her head, leg, back and her private parts as well but however, no sign of burning or blister was discovered by her. 48. P.W.2 in this connection has stated that her sister herself told her that she was beaten violently by her in-laws and sustained a number of injuries when he went for her bidai on 3.12.2003. He further states that due to that assault serious injuries were present over her body and he had seen the signs of injuries over her chest, head, back etc. and further he affirms that due to injuries his sister was unable to move even. 49. P.W.1 in the same fashion states that when her daughter was brought to her parental house she had a swollen face, black signs over her back and several signs of injuries were present over different parts of her body including several burn signs and blisters over different parts of her body as well. However, this court takes notice of this fact that the evidence of P.W.1, the informant/father of the deceased is self contradictory as in his cross-examination he categorically states that his daughter did not make any telephone call on 03.12.2003 and further did not inform about any assault made to her by her in-laws. Remarkably , if it was so, what brought two family members of P.W.1 and why they went to the matrimonial house of the deceased becomes a highly suspicious circumstance. The prosecution was certainly under obligation to explain the same but it failed and resultantly P.W.1 at this place himself disowns the contents of the FIR which was lodged by him leaving an ugly scar upon the story of prosecution. 50. The prosecution was certainly under obligation to explain the same but it failed and resultantly P.W.1 at this place himself disowns the contents of the FIR which was lodged by him leaving an ugly scar upon the story of prosecution. 50. The attention of this Court has been drawn to a very relevant situation which unfolds the truth of the prosecution case and the defence version as well. As per oral evidence on record when the deceased was brought to her parental house in the evening of 3.12.2003 she was found in injured condition by her family members and was medically examined by some Dr. Maurya in the very evening of 3.12.2003. 51. The prosecution evidence requires to be examined from the angle of the treatment of deceased in the evening of 3.12.2003 as well. 52. P.W.1 in his examination-in-chief states that when her daughter came to his house she told that she had been subjected to assault by her in-laws and she was even unable to speak properly but however he makes no statement for her treatment by some doctor of the locality, however, in his cross-examination he states that when his daughter came to his house she was conscious and was speaking as well. There were several signs of burn injuries over her body and blisters were also visible on different parts of her body. Significantly in his entire testimony he makes no statement for the treatment of the deceased in the evening of 3.12.2003. 53. P.W.2 Ghanshyam in his examination-in-chief has stated that the deceased had undergone treatment by a local doctor in the evening of 3.12.2003 who was named as Dr. Maurya Prasad kushwaha by him later on and further he explains that since doctors were not available in the government hospital she had undertaken treatment of Dr. Maurya at 7.30 pm where she was carried by his father and not by him. 54. P.W.3 Shabnam states that since the deceased had several bodily injuries, Dr. Maurya was called for her treatment. However this fact does not appear in her statement under section 161 Cr.P.C. and she is unable to to explain the reason thereof. While controverted in her cross-examination she states that on being interrogated by the I.O. she had disclosed the factum of treatment of the injured by Dr. Maurya was called for her treatment. However this fact does not appear in her statement under section 161 Cr.P.C. and she is unable to to explain the reason thereof. While controverted in her cross-examination she states that on being interrogated by the I.O. she had disclosed the factum of treatment of the injured by Dr. Maurya and she herself had seen injuries over the several parts of her body but however there was no sign of burning and no blisters were seen by her. She further states that Dr. Maurya visited her place at 7.30 in the evening but how long he remained at her house she is unable to tell. She further states that only one or two bangles were found in her wrist and rest of the bangles were broken while she was being beaten by her in-laws. 55. On analysis of the evidence of the witnesses of fact on record some twisted story in respect of the treatment of the deceased by Dr. Maurya is found. At one place P.W.3 the sister of the deceased states that in the evening at 7.30 PM Dr. Maurya had visited her own house to see her sister but at the same time P.W.2 the brother of the deceased states that his father himself took his sister to Dr. Maurya in the evening at 7.30. This is a material contradiction in the deposition of P.W.2 and P.W.3 as to whether Dr. Maurya himself visited the place of the informant or the deceased was taken to the clinic of Dr. Maurya. The said contradiction undoubtedly is very significant and relevant in the facts and circumstances of the present case because the most crucial issue in this case is as to at which place the deceased sustained injuries. There are material contradictions in the statement of P.W.1, P.W.2 and P.W.3 as to whether there were blisters/burn injuries over the body of the deceased or not. No clear picture regarding the health and condition of the deceased when she was brought to her parental house is found on the basis of evidence of P.W.1, P.W.2 and P.W.3 who make inconsistent and contradictory statements in this regard. It is also relevant to see that if the deceased was taken by the informant P.W.1 to Dr. Maurya for treatment why this fact does not appear in the entire testimony of P.W.1 himself. It is also relevant to see that if the deceased was taken by the informant P.W.1 to Dr. Maurya for treatment why this fact does not appear in the entire testimony of P.W.1 himself. Moreover, P.W.8 the first I.O. categorically states that P.W.3 Shabnam never told him that the deceased remained under treatment of some Dr. Maurya in the evening of 03.12.2003, hence the entire story of treatment of the deceased by some Dr. Maurya is an after thought script of the prosecution which cannot be relied upon. 56. P.W.4 the doctor who performed the first autopsy of the deceased no where states that any blister was found over any of the injuries sustained by the deceased. 57. P.W.6 in the post mortem report Ex.Ka-11 makes no statement in respect of any burn injury or blister found over the body of the deceased and this is a material contradiction between the prosecution version and the medical evidence adduced in this regard which leaves this question unanswered as to if the deceased was burnt by some of the accused persons by pouring hot mustered oil upon her which resulted into generating some burn injuries and blisters over her body parts why no blister or burn sign was found by the doctors who performed her autopsy and at this juncture the prosecution story becomes highly suspicious which proceeds with a specific case that the deceased had informed her family members on phone that she was burnt by her mother-in-law and elder sister-in-law (jethani) by pouring hot mustard oil upon her and this situation indicates that certainly there was some concealment of facts on the part of the prosecution which adversely affects the very inception of the case. 58. It is relevant to note that Dr. Maurya who is said to perform the medical examination of the deceased on the very evening when she was brought to her parental house has not been produced by the prosecution as a witness. Interestingly the I.O. has not arrayed him in the list of witnesses which further shows that no statement under Section 161 Cr.P.C. of the said Dr. Maurya has been recorded by the I.O. 59. It is true that every omission and negligence on the part of the I.O. is not fatal for the prosecution unless its goes to the very root of the prosecution case but in the case in hand notably Dr. Maurya has been recorded by the I.O. 59. It is true that every omission and negligence on the part of the I.O. is not fatal for the prosecution unless its goes to the very root of the prosecution case but in the case in hand notably Dr. Maurya would be the only and the best witness who could affirm the factum of the injuries, if any, inflicted upon the body of the deceased in the very morning of the incident of assault and burning by the in-laws of the deceased and no doubt this omission of I.O hits the prosecution case adversely. 60. A very significant statement has been made by P.W.4, the doctor who in his testimony emphasises injury no.8 sustained by the deceased which was a contusion over the scalp of the deceased as cause of death of the deceased. In his cross-examination P.W.4 says: ^^pksV uacj 8 ds yxus ds rqjar ckn vFkok 15&20 feuV ckn e`rdk csgks'k gks xbZ gksxh vkSj blh pksV ds dkj.k dksek esa pyh xbZ gksxhA^^ 61. P.W.6 also finds a contusion over the scalp of the deceased and has also averred that the death of the deceased was caused by coma as a result of ante-mortem head injury. 62. Learned counsel for the appellants has raised a prominent question particularly with reference to the medical evidence. Referring the statement of P.W.4 it has been argued that if the deceased became unconscious immediately after sustaining injury no.8 (head injury) and went in coma how it can be said that the said head injury was received by the deceased in her matrimonial house on 3.12.2003 as she survived and died on the next day at about 7.30 am. It has been vehemently argued that the aforesaid situation is indicative to the fact that the deceased was probably beaten by her own family members some time before her death and in that case no injury could be inflicted upon her body in her matrimonial house from where she had already been taken to her parental house in the evening of 3.12.2003. Had she sustained the injuries, particularly the head injury in her matrimonial house she could not survive beyond the evening of 3.12.2003 as opined by the doctor P.W.4 and if she remained alive for the next day it denotes that no injury, particularly the fatal injury no.8 as shown in the post mortem reports Ext. A9 and Ext. A11 respectively, was inflicted upon her in her matrimonial house. The defence has come forward with a definite case by putting suggestions to the P.Ws, who were the family members of the deceased that the deceased was beaten by her own family members at any point of time in the evening of 03.12.2003 or in the morning of 4.12.2003 as she was insisting upon not to go to her matrimonial house because she was not willing to marry and live with Ram ji and the injuries so caused by her own family members were proved fatal to her . 63. In the facts and circumstances of this case and also in the light of the evidence adduced by the prosecution it is found that the prosecution has miserably failed to prove that the injuries were inflicted by the accused persons to the deceased when she was with them in her matrimonial house for the reason that the oral evidence of P.W.1, P.W.2 and P.W.3 over this issue is full of contradictory and inconsistent statements. 64. Learned A.G.A. vehemently argued that the medical evidence as per settled legal principle cannot override upon the ocular evidence and if there is some conflict between medical and ocular evidence this is the evidence of eyewitness which overpowers the opinion given by the doctor whose deposition being an expert is only of advisory character. 65. 64. Learned A.G.A. vehemently argued that the medical evidence as per settled legal principle cannot override upon the ocular evidence and if there is some conflict between medical and ocular evidence this is the evidence of eyewitness which overpowers the opinion given by the doctor whose deposition being an expert is only of advisory character. 65. The attention of the Court is drawn to the rule that in case the Court finds a possibility that the medical evidence may not supersede the ocular evidence, the Courts of law should lean in favour of the prosecution but in the present case the opinion given by the doctor is no where contrary to the material evidence on record due to the reason that there is no ocular evidence in respect of the story of assault made upon the deceased on record and the prosecution case at this juncture runs under the circumstantial evidence; no witness has seen the accused persons making assault upon the deceased and the crucial issue involved in this matter as to whether the deceased sustained injuries in her matrimonial house or parental house has not been clarified by the prosecution by any cogent and consistent evidence and the prosecution no doubt failed to prove this crucial issue in its favour. 66. The legal presumption as to the medical evidence has always been to the effect that it is only an opinion given by a medical expert but it need not be the last word on the subject. From the cojoint reading of the decisions Sadhu Saran Singh Vs. State of Uttar Pradesh and Anr. (2016) 4 SCC 357 and State of Haryana Vs. Bhagirath and Ors. (1999) 5 SCC 96 over this issue the conclusion which is arrived at is that the evidence of a doctor is only of an advisory character which should be tested by the Court and if the opinion is bereft of logic or objectivity or not consistent with the probabilities of the case, the Court is not obliged to go by that opinion. The Court has no liability to go by that opinion merely because it is said by a medical expert although due weight must be given to opinion given by persons who are expert in the particular subject. 67. Sahebrao Mohan Berad Vs. State of Maharashtra 2011 Cr.LJ. The Court has no liability to go by that opinion merely because it is said by a medical expert although due weight must be given to opinion given by persons who are expert in the particular subject. 67. Sahebrao Mohan Berad Vs. State of Maharashtra 2011 Cr.LJ. 2157 (SC) is another authority wherein it has been pronounced that if the cause of death as opined by the doctor is inherently defective it can be rejected in that case only otherwise doctor is the only competent person to opine about the cause of death. In the instant case, the doctor P.W.4 has given a clear opinion that death of the deceased might have been the result of injury no.8 and the impact of the said injury might be that in all probabilities 15-20 minutes after sustaining the aforesaid inujury the deceased was likely to be unconscious and further to go into coma and this opinion has not been controverted by P.W.6, who performed the second autopsy of the deceased. 68. No doubt the concept of dowry death takes within its purview death of any type, whether accidental, homicidal or suicidal. It also does not make any bifurcation with regard to the place of occurrence as to at which place death was occurred. In the case in hand injuries found over the body of the deceased out of which one was proved fatal to her were capable to indicate that the death was not normal but to take benefit of this column the prosecution bears the burden of at least to show that when the deceased was brought to her parental house, she had already sustained injuries and unfortunately the present case lacks an unblemished evidence on record and this failure comes out with an inference adverse to the prosecution. Despite testimony of P.W.1, P.W.2 and P.W.3 although contradictory, who state of having seen the injuries upon the body of the deceased, the main question remains unanswered as to why she was not undertaken any medical assistance in the evening if she was badly injured. P.W.1, P.W.2 and P.W.3 are having material contradictions as to the general condition of the deceased and the story of her treatment under Dr. Maurya is highly suspicious and cannot be believed. P.W.1, P.W.2 and P.W.3 are having material contradictions as to the general condition of the deceased and the story of her treatment under Dr. Maurya is highly suspicious and cannot be believed. If the deceased, as the facts and circumstances indicate, received injuries which resulted into her unfortunate death while residing with her own family members, I doubt the prosecution is enabled to get the benefit of the ingredient “death occurred otherwise than under normal circumstances”. “Soon before”- 69. The other relevant component to establish an offence under Section 304-B is the element of ‘soon before’ and when this Court goes through the evidence rendered by the prosecution over this issue it is found that only within a period of about 24 days from the marriage to death all the incidents happened. The learned state counsel urged that since the occurrence happened in a very short span of about 24 days of married life of the deceased, the element of ‘soon before’ naturally existed there. The FIR speaks that the marriage between the two solemnized on 11.11.2003 and when the deceased came back from her matrimonial house after about 5-6 days as P.W.1 states she told her family members that she was subjected to cruelty and harassment for demand of dowry by her in-laws but on 27.11.2003 she was again sent to her matrimonial house by her parents and again she was assaulted and harassed by her in-laws and on 3.12.2003 when she made a telephone call to her family members after being beaten and burnt by hot mustered oil in her matrimonial house, she was brought back to her parental house on the same day by her brother Ghanshyam and brother-in-law and thereafter on 4.12.2003 she died. 70. Sharpening his argument the learned AGA further argued that on the aforesaid issue, the testimony of P.W.1, P.W.2 and P.W.3 is almost the same and they corroborate the prosecution version over the aspect of short span of married life of the deceased. Now since 11.11.2003 the deceased was harassed and tortured by her in-laws for the demand of dowry and when she was lastly brought back to her parental house in the evening of 3.12.2003 after she complained of the cruelty, harassment and torture made by her in-laws in the morning and died just next day of her injuries, the element of ‘soon before’ is very well proved. The meaning and sense of the word ‘soon before her death’ has been explained in a catena of decisions by the Hon’ble Apex Court and this Court as well. 71. Explaining the manner and scope of the term ‘soon before’ her death the Ho’ble Apex Court in Satveer Singh Vs. State of Punjab (2001) 8 SCC 633 clarified that this expression indicates that there must be a perceptible nexus between the infliction of dowry related harassment and cruelty on the woman and her death. Further, in Satbir Singh Vs. State of Haryana (2021) 6 SCC 1 the Hon’ble Apex Court reiterated the principle of ‘soon before’ like this: “Being a criminal statute, generally it is to be interpreted strictly. However, where strict interpretation leads to absurdity 10 or goes against the spirit of legislation, the courts may in appropriate cases place reliance upon the genuine import of the words, taken in their usual sense to resolve such ambiguities. Therefore, courts should use their discretion to determine if the period between the cruelty or harassment and the death of the victim would come within the term "soon before". Thus, held, phrase "soon before" cannot be construed to mean "immediately before". Prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.” 72. In fact the expression ‘soon before’ never means immediately before and no definite period has been indicated in the provision itself and it is left open for the Courts to define the said expression dependent upon facts and circumstances of each case. It is reiterated in Kunhiabdulla and Anr. Vs. State of Kerala (2004) 4 SCC 13 that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned 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 death concerned. If alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 73. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 73. However, in the facts and circumstances of the presentie it is to be noted that it is an admitted case that the death of the deceased was caused when she was staying in the company of her own family members and the evidence on record falls short of the proof that the injuries sustained by her were the result of any assault or excruciating conduct of her in-laws and also it is not shown on the basis of any cogent and consistent evidence of the witnesses that soon before her death she was subjected to cruelty and harassment by her husband or any relative of the husband for, or in connection with, any demand of dowry. The prosecution failed to produce any cogent, reliable and unblemished evidence that after her bidai on 27.11.2003 to her matrimonial house, the deceased ever complained of any ill-treatment or cruelty in connection with demand of dowry by the accused persons and also that when on 03.12.2003, she was brought to her parental house she was bitterly injured. The evidence of P.W.1 himself shatters the whole prosecution story in this regard. 74. Hence, the vital element of ‘soon before’ is also found not proved and the inherent inconsistency and improbability in the evidence on record denies the prosecution of any benefit of the principle enumerated in the decisions noted above. False implication of the relatives of the husband in the case pertaining to dowry death 75. The learned state counsel submits that prosecution in the instant case has proved by cogent evidence of P.W.1, P.W.2 and P.W.3 that the deceased was subjected to cruelty and harassment for the demand of dowry since after her marriage by her in-laws. At this juncture it is also desirable to find out as to whether all the accused persons who were summoned to face trial under Section 304-B/34, 498-A/34 I.P.C. and 4 D.P. Act are liable to be punished for the said offences and this search takes the Court to find out the relation of the accused persons with the deceased Ram Ji, the husband. Accused Mahendra Kumar is brother in law (Jeth), Dwarika Prasad, Ram Prasad are uncles-in-law of the deceased, Smt. Manju is aunt-in-law, Smt. Manisha and Smt. Urmila are sisters in law (Jethani) and Smt. Kusum is sister in law (Nand) of the deceased. It is pertinent to mention here that as per prosecution case demand of dowry which was made by the accused persons from the deceased was for one scooter and Rs.50,000/-cash and that too by all the accused persons nine in number. 76. The Court genuinely feels that the implication of all the in-laws of the deceased for a demand of Rs.50,000/-and one scooter as dowry does not seem to be plausible and natural. The old aged uncles of deceased Ram Ji along with their wives and Jeth-Jethani, who have taken specific plea of separate living appear to be falsely implicated in this case and no specific or overt act has been assigned to them. Although a specific role on the part of the mother-in-law and Jethani of the deceased has been alleged by the prosecution witnesses to pour down hot mustered oil upon the body of the deceased but this allegation has not been proved by any cogent evidence. The Hon’ble Apex Court has focused on the issue of false implication of all the in-laws in the cases related to demand of dowry, cruelty and dowry death and in a catena of decisions this pattern has been deprecated by the Hon’ble Apex Court and it has been alarmed in case of K. Subba Rao and Ors. Vs. State of Telangana (2018) 14 SCC 452 that the Courts should be extremely careful and vigilant in proceeding against distant relatives of the husband in the crimes pertaining to the dispute even in dowry deaths. All the relatives of the husband should not be roped in on the basis of omnibus allegation unless specific instances of their involvement in the crime as alleged and surfaced during investigation. The increasing number of the cases relating to dowry death drew the concern of Hon’ble Apex Court and again it was observed in Kahkashan Kausar @ Sonam and Ors. Vs. State of Bihar and Ors (2022) 6 SCC 599 that implicating relatives of husband in matrimonial disputes, without analysing the long-term ramification of a trial on the complainant as well as the accused is improper. Vs. State of Bihar and Ors (2022) 6 SCC 599 that implicating relatives of husband in matrimonial disputes, without analysing the long-term ramification of a trial on the complainant as well as the accused is improper. It was further held that general and omnibus allegations cannot be manifest in a situation where the relatives of the husband are forced to undergo trial. It was also emphasised by the Hon’ble Apex Court that allowing prosecution in the absence of clear allegations against relatives of the husband would simply result in an abuse of the process of law. 77. The case in hand is very well covered as to what was emphasised by the Hon’ble Apex Court in the above mentioned decisions. 78. The Court takes notice of the fact at the cost of repetition, that no other relatives of Ram Ji, who are roped as co-accused in this case have been assigned any specific role in the case in hand except a specific role of burning the deceased by use of hot mustered oil which is assigned to Smt. Sumri Devi, the mother-in-law and Smt. Manju, the sister-in-law (jethani) but as discussed earlier in the body of this judgement the evidence rendered by the prosecution on the aforesaid particular issue is completely unreliable and misguiding and there is no cogent proof of the same on record. 79. P.W.1 the father of the deceased no where states in his examination-in-chief that he had seen any sign of burning or blister over the parts of the body of her daughter. In his cross-examination P.W.1 states that when her daughter came back to her parental house he had seen several burn injuries and blisters upon her body but his examination-in-chief consists of no such statement. In the same fashion P.W.2 in the examination-in-chief makes no statement in respect of burn injuries and blisters seen over the body of the deceased. P.W.3 in her cross-examination makes a significant statement when she says that there appeared no sign of burn injuries over the body of her sister and she further states that there was no blister on any of the injuries of her sister and significantly she was watching her sister in the same evening when she allegedly sustained burn injuries in the morning. Hence, P.W.1, P.W.2 and P.W.3 are having material contradictions in their depositions recorded before the Court on the aforesaid issue. Hence, P.W.1, P.W.2 and P.W.3 are having material contradictions in their depositions recorded before the Court on the aforesaid issue. P.W.4 the doctor found several injuries over the body of the deceased but no where he states that he found any burn injury or blister over her body. In the same fashion P.W.6 the doctor who performed the subsequent autopsy of the deceased no where states to find out any burn injury or blister over the body of the deceased. Hence, the prosecution case so far as the injuries allegedly caused to the deceased on 3.12.2003 are concerned miserably fails to prove any specific role of assault or overt act to any of the accused persons. 80. In continuation it is also to be pointed out that the prosecution evidence is not sound on the point that all the accused persons were residing in the same house. The accused persons relatives of Ram Ji have taken a defence of separate living as well and their addresses as may be found in their statement under Section 313 Cr.P.C. are different from that of Ram Ji, the husband. It might be a normal situation that Ram Ji, the husband of the deceased, who himself is no more at present would be residing with her mother Smt. Sumri Devi in the same house but it is never plausible that her married sister Smt. Kusum also used to reside with the deceased in the same house. The prosecution has not produced any cogent and reliable evidence to this effect that all the accused persons were living jointly in the same house. In the site plan Ex.Ka-13, the place of occurrence is shown in the house of Shyam Sundar, who is the late father of Ram Ji, which is indicative of the fact of separate living of other relatives of Ram Ji. Hence, if except the husband and mother-in-law of the deceased all the other relatives of the husband/ co-accused persons were residing separately, it was not plausible that they, who were in a large number, used to visit the matrimonial house of the deceased only for the sake of causing cruelty and harassment to her and to make a demand of one scooter and Rs.50,000/- only as dowry. 81. 81. This Court is of considered view that in absence of any cogent evidence for any specific role played by any of the relatives of the husband of the deceased, in accomplishment of the demand made and the harassment and cruelty, if any, for or in connection with any demand for dowry caused to the deceased, the relatives of the husband cannot be held liable for the charges levelled against them but the same treatment cannot be applied in the case of husband Ram Ji, now dead and mother-in-law Smt. Sumri Devi and up to this extent their evidence, after the death of the deceased does not fall in the category of ‘hearsay evidence’ and remains an admissible piece of evidence so far as the offences under Section 498-A and Section 4 Dowry Prohibition Act are concerned. 82. In the case of Asokan Vs. State with M. Balasubramaniam Vs. State of Tamil Nadu and Rajammal and Anr. Vs. State (2000) 4 SCC 68 the death of a house wife was caused by strangulation in her matrimonial house. The High Court on the given facts and evidence on record held that charge of murder was not established against the accused but the conviction of the husband of the deceased was found justified under Section 498-A I.P.C. and the Hon’ble Apex Court considered the statement of P.W.7, who had deposed that the deceased had told her for demand of a scooter and cot made by the accused husband and also had shown her injuries which were inflicted upon her on her failure to bring the scooter and other witness P.W.2 who also stated that the deceased had told him for her torture by her husband and mother-in-law for not getting the scooter and the Hon’ble Apex Court did not discard the evidence of P.W.2 & 7 and their deposition was not placed in the category of hearsay evidence. On the same analogy in the case in hand since the deceased used to tell her family members regarding the demand of one scooter and Rs.50,000/-cash as additional dowry and her tormentation for the same which was deposed by P.W.1, P.W.2 and P.W.3 before the trial Court, in my view, the deposition of all the aforesaid three witnesses does not fall within the category of heresay evidence and is capable of proving the charge under Section 498-A I.P.C. and Section 4 D.P. Act. Application of Section 113 B Evidence Act 83. Learned A.G.A. appearing for the prosecution has vehemently argued that a presumption under Section 113-B of the Evidence Act arises against the accused persons of this case, which means that burden of proof is now shifted to the defence side. Pleading their innocence, the said plea was heavily opposed by the learned counsel for the appellants. 84. Learned senior advocate appearing on behalf of the appellants has drawn the attention of the Court in respect of the concept of the burden of proof particularly in a case relating to dowry death. It has been submitted that the case relating to dowry death rests upon circumstantial evidence and there can be no ocular evidence in a dowry death case but the surrounding circumstances which play a vital role in establishing the offence of dowry death should also be taken into account while dealing with such a matter. 85. The Evidence Act, 1872 consists of a peculiar provision under Section 113-B which provides like this: “113-B. Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death”. 86. It is vehemently submitted that a presumption as to dowry death arises only in case the essential components to establish an offence of dowry death are found established on the basis of the evidence on record and in that case the theory of burden of proof is to be looked into with a different angle and in case the prosecution succeeds to establish the essential ingredients in respect of an offence of dowry death, particularly the element of ‘soon before’, the corresponding burden of proof shifts upon the accused and a legal presumption arises against him to show that the dowry death was not caused by him and the Court presumes that the accused had caused a dowry death. 87. In Sher Singh Vs. 87. In Sher Singh Vs. State of Haryana (2015) 3 SCC 724 the Hon’ble Apex Court in a wide perspective made an interpretation of the word ‘shown’ and ‘deemed’ in connection with Section 113-B of Evidence Act and it has been held that "Shown" should be read as "proved" and "deemed" should be read as "presumed". Initial burden is on prosecution to prove by preponderance of probabilities the ingredients of Section 304-B. Requiring prosecution to prove these ingredients beyond reasonable doubt would defeat purpose of Section 304-B. Once such initial burden is discharged by prosecution, initial presumption of innocence of accused would get replaced by deemed presumption of guilt of accused. Burden would then be shifted on accused to rebut that deemed presumption of guilt by proving beyond reasonable doubt his innocence. Right to life and liberty of accused cannot be jeopardised without providing accused opportunity to prove his innocence”. 88. So far as the case in hand is concerned it has been discussed in the earlier part of this judgement that the prosecution has miserably failed to show that when the deceased came to her parental house from her matrimonial house she was injured and in the same evening she was also medically examined by some local doctor. The prosecution was under initial obligation to show that soon before her death the deceased was subjected to cruelty and harassment by the accused persons in connection with demand of dowry but it failed. 89. For failure of prosecution to establish the aforesaid ingredient of ‘soon before’ no presumption under Section 113-B of The Evidence Act arises against the accused persons or in favour of the prosecution and consequently the burden of proof does not shift in this matter and it remains intact upon the shoulders of the prosecution. 90. Vetting the submissions made by both the sides on the aforesaid crucial issue of presumption as to dowry death, the Court takes notice of the legal formula as to what is the extent of burden of proof which lies upon an accused in a criminal trial. 90. Vetting the submissions made by both the sides on the aforesaid crucial issue of presumption as to dowry death, the Court takes notice of the legal formula as to what is the extent of burden of proof which lies upon an accused in a criminal trial. It is a trite law and this Court is never hesitant to promulgate that it is always the prosecution which owes a burden of proof beyond reasonable doubt in a criminal trial but in certain enactments and in a case like this one as well by virtue of Section 113-B of Evidence Act the prosecution enjoys a privilege of shifting of burden of proof by way of a legal presumption whereby showing certain contingencies and it is able to be drawn a presumption in its favour but at the same time it must be borne in mind that the concept of burden of proof in a criminal trial is little lighter when it is the duty of the accused to prove certain facts and it is not beyond reasonable doubt in comparison with the prosecution. In the case in hand, it is found on the basis of evidence on record that the prosecution, in view of the concept laid down in Sher Singh (supra) has failed to prove by preponderance of probabilities the ingredients of the offence under Section 304-B I.P.C. and since this initial burden is not discharged by the prosecution, no deemed presumption of guilt arises against the defence side. 91. In a recent pronouncement Primila Vs. State of U.P. (2023) 2 SCC (Cri) 223, the Hon’ble Apex Court over the subject held as below: 7. ………..It has repeatedly been held that the procedure under Section 313 CrPC is but a facet of the principles of natural justice giving an opportunity to an accused to present the defence. The burden of proof on an accused in support of the defence taken under Section 313 CrPC is not beyond all reasonable doubt as it lies on the prosecution to prove the charge. The accused has merely to create a doubt. It will be for the prosecution then to establish beyond reasonable doubt that no benefit can flow from the same to the accused. 92. Similarly in Anand Ramchandra Chougule Vs. Sidarai Laxaman Chougala and Ors. The accused has merely to create a doubt. It will be for the prosecution then to establish beyond reasonable doubt that no benefit can flow from the same to the accused. 92. Similarly in Anand Ramchandra Chougule Vs. Sidarai Laxaman Chougala and Ors. (2019) 8 SCC 50 the same principle was reiterated by the Hon’ble Apex Court in following paragraphs which are extracted as herein under: “10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt. 11. The fact that a defence may not have been taken by an accused under Section 313 CrPC again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand, this Court observed: (SCC pp. 433-34, para 28) "28.... When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt." 93. In the said law the Hon’ble Apex Court referring the notion of law promulgated in Pratap Vs. State of U.P. (1976) 2 SCC 798 clarified that it is well settled that the burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability. 94. State of U.P. (1976) 2 SCC 798 clarified that it is well settled that the burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability. 94. In fact the legal philosophy which makes the onus of proof easier for an accused is that from the materials placed on record a reasonable doubt is created in the mind of the Court that with regard to some relevant probabilities the accused shall be entitled to the benefit of doubt. 95. In the preceding paragraphs of this judgement this Court has dealt with the circumstances as to what was incumbent upon the prosecution to prove on the basis of the cogent, factual and medical evidence which the prosecution failed to prove in the present case and that resulted into non-application of Section 113-B of Evidence Act in this matter. Defence Evidence 96. To buttress his arguments on the basis of the evidence and case laws the learned counsel for the appellants relied upon the defence evidence adduced by the accused persons during trial. 97. D.W.1 Vinod Kumar, who is the resident of same village where Ram Ji, the deceased’s husband was residing, states that after marriage deceased came to her matrimonial house but stayed only for a short period of 2-3 days and then went to her parental house where she expired after 14-15 days. 98. In the same fashion D.W.2, who is the neighbourer of Ram Ji states before the Court that after her Bidai when the deceased after 2-3 days of her marriage went to her parental house, she never came back to her matrimonial house. 99. D.W.3 is the witness of separate living of accused Mahendra (Jeth) and he further states that after marriage the deceased stayed at her matrimonial house only for a period of 2-3 days and then went back to her parental house where she expired after 14-15 days. 100. All the three defence witnesses have been cross-examined by the government counsel but remained intact and strengthened the defence case. 100. All the three defence witnesses have been cross-examined by the government counsel but remained intact and strengthened the defence case. It is to be added here that some defence papers showing the factum of separate living of some of the accused persons attached along with list 42 Kha are found on record but however, no witness came forward to prove the same. 101. The Court also takes notice to the fact that CW-1 Rajesh Kumar Yadav, C.O. Sirathu was also examined under the impression that he was the I.O. of the case but in his deposition he clarifies that he has not been working in this case as I.O. 102. It is trite law that in a criminal trial the defence evidence stands on the same footing as that of the prosecution and the law is settled in a catena of decisions of the Hon'ble Apex Court. In Munshi Prasad vs. State of Bihar, (2002) 1 SCC 351 , it has been held that : "3... Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution………..” 103. It is notable that the present matter was investigated by two Investigating officers and both have been examined as P.W.7 and P.W.8 by the prosecution. Conclusion- 104. To sum up the matter, it is to be concluded that the charge relating to dowry death of the deceased is not proved in this case particularly for want of proof of the essential ingredient of ‘soon before’ on the part of prosecution. The aforesaid discussion leads this Court to a logical conclusion that the prosecution miserably failed to show that ‘soon before’ her death the deceased was subjected to cruelty and harassment by her in-laws for or in connection with demand of dowry. The aforesaid discussion leads this Court to a logical conclusion that the prosecution miserably failed to show that ‘soon before’ her death the deceased was subjected to cruelty and harassment by her in-laws for or in connection with demand of dowry. The evidence of P.W.1, P.W.2 and P.W.3 is sufficient to prove the factum of her being victim of cruelty and harassment by the husband and her mother but the relatives of husband Ram Ji have been falsely roped in this case. Hence, in the facts and circumstances of this case the accused husband Ram Ji and mother-in-law Sumari Devi only may be held liable for the offence under Section 498-A and Section 4 D.P. Act for causing cruelty to the deceased and also for making an indirect demand of dowry from the family members of the deceased through her but the evidence on record is not sufficient to record the conviction of the appellants under Section 304-B/34 I.P.C. as the essential ingredient of ‘soon before’ is not satisfied. The death of the deceased occurred while she was staying with her own family members. The evidence adduced by the prosecution falls short of proving the essential ingredients to constitute an offence under Section 304-B I.P.C. as discussed earlier. It is also found in the facts and circumstances of this case that the prosecution further failed to show that all the relatives of the husband were residing jointly with the appellant Ram Ji and her mother Sumari Devi and hence, they are entitled for benefit of doubt and as such the appeal deserves to be party allowed. 105. Hence, the Criminal Appeal No. 6710 of 2011 is party allowed. The conviction and sentence of the sole surviving convict-appellant Smt. Sumari Devi for the offence under Section 304-B/34 I.P.C. is set aside whereas the conviction and sentence imposed upon her for the offences under Section 498-A/34 I.P.C. for 2 years rigorous imprisonment with a fine of Rs.2,000/-with default stipulation and for the offence under Section 4 D.P. Act for 1 year simple imprisonment with a fine of Rs.1,000/-with default clause is hereby confirmed. Appellant Smt. Sumari Devi is on bail, her bail bonds are cancelled and sureties are discharged. The concerned Court is directed to take the appellant Smt. Sumari Devi into custody forthwith and send her to jail to serve-out the remaining sentence. Appellant Smt. Sumari Devi is on bail, her bail bonds are cancelled and sureties are discharged. The concerned Court is directed to take the appellant Smt. Sumari Devi into custody forthwith and send her to jail to serve-out the remaining sentence. It is also clarified that both the sentences shall run concurrently and the period of sentence shall be adjusted into the period already undergone by her in this matter. 106. The Criminal Appeal No. 5490 of 2011 is allowed. The conviction and sentence under Sections 304-B/34, 498-A/34 I.P.C. and under Section 4 D.P. Act awarded by the learned trial Court vide impugned judgement and order dated 9.9.20211 to the convicts-appellants Mahendra Kumar, Ram Prasad, Smt. Manju, Smt. Manisha, Smt. Urmila and Smt. Kusum is set aside and they are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. 107. The amount of fine, if any, deposited earlier by the aforesaid appellants shall be taken into account by the learned trial Court while making a compliance of impugned judgement and order of this appeal. 108. Registry is directed to transmit the trial court record to the Court concerned along with copy of this judgement and order for necessary compliance. 109. This Court is thankful to Sri V.P. Srivastava, learned Senior Advocate assisted by Ms. Neeja Srivastava, learned counsel for the appellants, Sri Kamal Dev Rai and Sri A.K. Mishra, learned A.G.A. for the State and Mr. Akash Verma, Research Associate of this Court for ably assisting the Court.