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Tuesday, July 28, 2015

Insofar as the letter allegedly written by the deceased to Rahul’s brother-in-law, like two other documents, this letter was also not recovered during investigation but produced by the accused along with the bail application. Having written such a letter to her brother-in-law, it is strange that without posting the same, the deceased would have kept the letter in the suitcase. When confronted with the letter, PW-1 denied it to be in the hand writing of Archana. The accused had also not taken any steps to send the documents to hand writing expert for obtaining the opinion of the hand writing expert by summoning the admitted writings of deceased-Archana. If the investigating officer had omitted to do the investigation regarding the documents produced by the accused in the court, the accused could have taken steps to prove the documents to substantiate their defence. Having not done so, the accused cannot turn round and contend that there were lapses on the part of the investigation which vitally affect the prosecution case.


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPEAL NO.1247 OF 2012

V.K. MISHRA & ANR.                                           ...Appellants


STATE OF UTTARAKHAND & ANR.              ...Respondents


                      CRIMINAL APPEAL NO. 1248 OF 2012

RAHUL MISHRA                                          ...Appellant


STATE OF UTTARAKHAND & ANR.              ...Respondents

                               J U D G M E N T


            These appeals arise out of the judgment dated 26.09.2011  passed
by the High Court of Uttarakhand at Nainital in  Criminal  Appeal  No.42  of
2002, whereby High Court confirmed the conviction of  the  appellants  under
Section 304B, 498A IPC and under Sections 3 and 4 of the  Dowry  Prohibition
Act and the sentence of imprisonment for life was imposed on each of them.
2.          Brief facts which led to filing of these appeals are as  under:-
Deceased-Archana  was  given  in  marriage  to  accused  Rahul   Mishra   on
28.06.1997. Before marriage and after the  engagement,  Dr.  Hirday  Narayan
Tripathi, father of the deceased, had given a sum  of  Rs.50,000/-  each  on
three occasions and Rs.63,200/- on  11.07.1997  and  also  gifted  jewellery
worth Rs.2,00,000/-  to  Archana.  Archana,  after  return  from  honeymoon,
visited her parents house  and  complained  several  times  to  her  father,
mother and brother about the continuous harassment and torture meted out  to
Archana by her in-laws and husband and  that  they  used  to  abuse  her  in
connection with demand of dowry. Between 09.08.1997 to  10.08.1997,  Archana
visited her parents house. On  09.08.1997,  Archana  informed  her  brother-
Santosh (PW-2) about the demand of Rs. 5,00,000/- by the appellants and  PW-
2 told  Archana  that  he  will  talk  to  the  appellants.  On  10.08.1997,
appellant Rahul came to Archana’s house and had taken back  Archana  to  his
house. On  10.08.1997,      PW2-Santosh  Kumar  visited  the  house  of  the
accused  and  tried  to  pacify  the  accused  regarding  their  demand   of
Rs. 5,00,000/-; but the accused persisted in their  demand.  On  13.08.1997,
PW1-Dr. Hirday Narayan Tripathi visited various  institutions  to  find  job
for Archana.  On the same day, Archana was admitted in  the  hospital  as  a
suspected case of poisoning and she died due to poisoning. Law  was  set  in
motion  by  PW1-Dr.  Hirday  Narayan  Tripathi  and  on  the  basis  of  the
complaint, FIR was registered against the accused in  FIR  Case  No.571/1997
under  Sections  306  and  498A  IPC  at  P.S.  Kotwali,  Dehradun.    After
investigation, charge-sheet was filed and charges were  framed  against  the
appellants-accused by the trial court under  Sections  304B,  498A  IPC  and
under Sections 3 and 4 of the Dowry Prohibition Act.
3.          To substantiate charges against  the  accused,  prosecution  has
examined 14 witnesses. When the accused were questioned  under  Section  313
Cr.P.C. about the incriminating  evidence  and  circumstances,  the  accused
denied demand of  any  dowry  and  pleaded  that  they  are  innocent.  Upon
consideration of evidence, trial court-Additional Sessions  Judge,  Dehradun
vide judgment dated 04.02.2002 convicted the appellants under  Section  304B
IPC and sentenced them  to  undergo  rigorous  imprisonment  for  life.  The
appellants were also convicted under Section 498A IPC and each of  them  was
sentenced to undergo rigorous imprisonment for three years with  a  fine  of
Rs.2,000/- each  with  default  clause.   They  were  also  convicted  under
Sections 3 and 4 of the Dowry Prohibition Act and were sentenced to  undergo
rigorous imprisonment for one year with  a  fine  of  Rs.1,000/-  each  with
default  clause.  All  the  sentences  were  ordered  to  run  concurrently.
Aggrieved by the verdict of conviction, the appellants preferred  an  appeal
before the High Court which came to be dismissed confirming  the  conviction
and sentence imposed on the accused by the trial court.
4.          The learned counsel for the appellants  contended  that  in  the
FIR lodged by the father  of  the  deceased  or  in  his  earlier  statement
recorded by the police neither there was mention of any  dowry  demand  made
by the appellants nor of any harassment meted out to his daughter.   It  was
contended that PW2-brother of the deceased made a false  statement  for  the
first time on 18.08.1997 i.e. five days after the death of  Archana  stating
that the parents-in-laws of  the  deceased  were  raising  dowry  demand  of
Rs.5,00,000/- and also made allegations regarding cruelty and harassment  in
connection therewith.  It was submitted that  PW-2  kept  silent  for  about
eight days from the date of the alleged dowry demand  and  the  cruelty  and
while so, the trial court and the High Court erred in placing reliance  upon
the evidence of PW-1 and PW-2 to record the verdict of  conviction.  It  was
contended that entire investigation was flawed as regards the  suicide  note
and the letter  written  by  the  deceased  to  her  brother-in-law  and  no
detailed  investigation  was  carried  out  viz.  the  inland  letter  dated
10.08.1997 received by  the  deceased  which  according  to  the  appellants
contained threats from a dejected lover and  sample  of  vomitus  taken  was
either changed or tampered. It was  vehemently  contended  that  the  courts
below were not right in recording the conviction based on  the  evidence  of
PW-1, PW-2 and PW-3 which were purely hearsay  and  full  of  contradictions
and thus lacked credibility apart from being clearly an afterthought.
5.           Learned  counsel  for  the  respondents  submitted   that   the
prosecution adduced cogent  and  consistent  evidence  to  prove  the  dowry
demand  and  that  deceased-Archana  was  highly  educated  girl  and   very
sensitive who ended her life only due to the  appellants’  greed  for  dowry
and the appellants subjecting her to cruelty and  harassment  in  connection
with the demand of dowry.  It was submitted that upon  proper  appraisal  of
evidence, the trial court as well as the High Court  rightly  convicted  the
appellants and the  verdict  of  conviction  and  sentence  of  imprisonment
imposed on the appellants warrant no interference.
6.          We have given our thoughtful consideration  to  the  contentions
urged by the counsel for the parties and perused the impugned  judgment  and
the materials on record.
7.          In order to attract application of Section 304B IPC, the
essential ingredients are as follows:-
1.    The death of a woman should be caused by burns  or  bodily  injury  or
otherwise than under a normal circumstance.

2.    Such a death should have occurred within seven years of her marriage.

3.    She must have been subjected to cruelty or harassment by  her  husband
or any relative of her husband.

4.    Such cruelty or harassment should be for or in connection with  demand
of dowry.

5.    Such cruelty or harassment is shown to have  been  meted  out  to  the
woman soon before her death.

On  proof  of  the  essential  ingredients  mentioned  above,   it   becomes
obligatory on the court to raise a presumption that the accused  caused  the
dowry death. A conjoint reading of Section 113B  of  the  Evidence  Act  and
Section 304B IPC shows that there must be material to show that soon  before
her death the victim was subjected to cruelty or harassment.  ‘Soon  before’
is a relative term and it would depend upon circumstance of  each  case  and
no strait-jacket formula can be laid down as  to  what  would  constitute  a
period ‘soon before the occurrence’.  There must be inexistence a  proximate
live link between the facts of cruelty in  connection  with  the  demand  of
dowry and the death.  If the alleged incident of cruelty is remote  in  time
and has become stale enough not to disturb mental equilibrium of  the  woman
concerned it would be of  no  consequence.  The  evidence  and  material  on
record to be examined whether there is evidence to prove that  ‘soon  before
the occurrence’, deceased-Archana was subjected to  torture  and  harassment
in connection with demand of dowry and whether the courts  below  are  right
in convicting the appellants under Section 304B IPC.
8.          In his evidence, PW1-Dr. Hirday Narayan Tripathi, father of  the
deceased, stated Archana was highly educated girl i.e. M.Sc. B.Ed  and  that
the marriage was solemnized with Rahul  Mishra  on  28.06.1997.  He  deposed
that after the engagement of his daughter-Archana  on  07.02.1997,   demands
of dowry started from the  side  of  groom  for  a  motor-cycle,  a  sum  of
Rs.2,00,000/- etc.  In his evidence PW-1 stated that  amount  was  given  to
the accused persons  both  before   marriage  and  also  after  marriage-(a)
Rs.50,000/- on 24.02.1997; (b)  Rs. 50,000/- on 14.03.1997; (c)  Rs.50,000/-
on 05.05.1997 and (d) Rs.63,200/- on 11.07.1997 and that he raised money  by
sale of his land and by drawing money from his  GPF.   PW-1  further  stated
that the demands were raised for TV, washing machine, dining  table,  chairs
and almirah etc.  He has stated that his daughter came after three  days  of
‘pagphera’ and she  told  that  the  appellants  are  treating  her  cruelly
demanding balance amount.  PW-1 told his daughter that as he has  no  money,
he will be paying them Rs.10,000/-  from  his  salary.   Archana  asked  her
father to shut the mouth of the appellants by throwing money on  their  face
by withdrawing the amount from her own account  and  accordingly  they  paid
Rs.63,200/- to the appellants and  the  appellants  still  unsatisfied  made
demand for money for starting the new business.  Deceased-Archana also  told
her parents over phone that her in-laws were pressurizing her for  money  in
order to start a new business. PW-1 stated that in the  last  week  of  July
1997, the appellant V.K. Mishra telephonically demanded money  for  starting
new business and due to PW-1’s inability to fulfill the demand, the  accused
persons’ attitude towards Archana worsened and they threatened her to  throw
out of the matrimonial house.
9.          PW-1 further stated that Archana feeling depressed and  being  a
determined girl decided to take up a job and two  or  three  days  prior  to
06.08.1997 in the night she came  to  her  parental  house  to  collect  her
certificates of educational qualification and other materials.  PW-1  stated
that on 13.08.1997 in search of job for his  daughter  he  went  to  Central
School and also Indian Institute of Petroleum and in the evening  he  wanted
to inform his daughter about his efforts and that there  being  no  vacancy.
But before that PW-1 made a phone call to his wife who asked  him  to  reach
Doon Hospital immediately as Archana was seriously ill and when  he  reached
the hospital, he was informed by the  appellant  V.K.  Mishra  that  Archana
consumed poison and died. PW-1 stated that his elder son-Santosh Kumar  (PW-
2) returned from Bombay on 15.08.1997,  who  also  informed  him  about  the
demand of Rs.5,00,000/- by the accused persons from Archana.
10.         Evidence of  PW-1-complainant  is  assailed  by  the  appellants
contending that in the complaint lodged by him it is not mentioned that  any
kind of dowry demand was ever made and that allegation of  demand  of  dowry
is flawed as the same was neither mentioned in the FIR nor in his  statement
recorded by the investigating  officer.  It  was  also  submitted  that  the
details of payment of dowry was also not made clear by PW-1  either  in  the
FIR or in his statement and evidence in the Court is  only  an  exaggeration
and no weight could be attached to the same.
11.         Of course, in the FIR, PW-1 had not given  the  details  of  the
money paid to the accused.  But in  his  complaint  PW-1  had  categorically
stated that the appellants had  been  torturing  Archana  with  their  cruel
behaviour and Archana complained the same to him and that he advised her  to
compromise with the situation and create a healthy atmosphere. In  the  FIR,
though, there is no specific mention about the demand of dowry, cruelty  and
torture alleged in the FIR could have been only in  connection  with  demand
of money or jewels.  Marriage  of  Archana  with  accused-Rahul  Mishra  was
solemnized only on 28.6.1997 and Archana was  yet  to  settle  down  in  the
house of her in-laws.  Both the families were  almost  of  same  social  and
economic status.  It is not  the  case  of  the  defence  that  the  alleged
cruelty could only be the matrimonial skirmishes  due  to  normal  wear  and
tear of the matrimonial house.  As noticed earlier, money was given by  PW-1
both prior to marriage and after the marriage on  11.07.1997  also.   Viewed
in that context, the alleged cruelty and torture could  have  been  only  in
the context of demand of money or jewellery.
12.         FIR is not meant to be an encyclopedia nor  is  it  expected  to
contain all the details of the prosecution case. It  may  be  sufficient  if
the broad facts of the prosecution case are stated in  the  FIR.   Complaint
was lodged within few hours after the  tragic  event.   PW-1  has  lost  his
young daughter just married before six  weeks  in  unnatural  circumstances.
Death of a daughter within few days of the marriage, the effect on the  mind
of the father-PW1 cannot be measured by any  yardstick.  While  lodging  the
report, PW-1 must have been in great shock and mentally  disturbed.  Because
of death of his young  daughter  being  grief  stricken,  it  may  not  have
occurred to   PW-1 to narrate all the details of payment of  money  and  the
dowry harassment meted out to his daughter. Unless there are indications  of
fabrication, prosecution version cannot be doubted,  merely  on  the  ground
that FIR does not contain the details.
13.         Mr. K.T.S. Tulsi, learned  Senior  Counsel  for  the  appellants
submitted that FIR contains only allegations of torture and  cruel  behavior
on the part of the appellants towards the  deceased  and  in  his  statement
recorded by the police under  Section  161  Cr.P.C.,  PW-1  had  not  stated
anything about the alleged dowry demand whereas in  his  statement  recorded
by the police, PW-1 had only stated about many restrictions imposed  on  his
daughter due to which Archana felt suffocated. Contending  that  there  were
no allegations of cruelty in  connection  with  dowry  demand  or  any  such
conduct of the appellants which could have driven Archana to commit  suicide
either in the FIR or in the statement of PW-1 recorded on the  next  day  by
the investigating officer, the learned Senior Counsel  urged  and  tried  to
persuade us to look into the statement of PW-1 recorded  under  Section  161
14.         Section 161 Cr.P.C. titled “Examination of witnesses by  police”
 provides for oral examination of a  person  by  any  investigating  officer
when  such  person  is  supposed  to  be  acquainted  with  the  facts   and
circumstances of the case.  The purpose for and  the  manner  in  which  the
police statement recorded under Section 161 Cr.P.C can be used at any  trial
are indicated in Section 162 Cr.P.C.  Section 162 Cr.P.C. reads as under:
162.  Statements  to  police  not  to  be  signed–Use   of   statements   in
evidence.–(1) No statement made by any person to a  police  officer  in  the
course of  an  investigation  under  this  Chapter,  shall,  if  reduced  to
writing, be signed by the person making it; nor shall any such statement  or
any record thereof, whether in a police diary or otherwise, or any  part  of
such statement or record, be used  for  any  purpose,  save  as  hereinafter
provided,  at  any  inquiry  or  trial  in  respect  of  any  offence  under
investigation at the time when such statement was made:

Provided that when any  witness  is  called  for  the  prosecution  in  such
inquiry  or  trial  whose  statement  has  been  reduced  into  writing   as
aforesaid, any part of his statement, if duly proved, may  be  used  by  the
accused, and with the permission  of  the  Court,  by  the  prosecution,  to
contradict such witness in the manner provided by section 145 of the  Indian
Evidence Act, 1872 (1 of 1872); and when any part of such  statement  is  so
used, any part thereof may also  be  used  in  the  re-examination  of  such
witness, but for the purpose only of explaining any matter  referred  to  in
his cross-examination.

(2)   Nothing in this section shall be deemed  to  apply  to  any  statement
falling within the provisions of clause (1) of  section  32  of  the  Indian
Evidence Act, 1872 (1 of 1872), or to affect the provisions  of  section  27
of that Act.

Explanation.- An omission to state a fact or circumstance in  the  statement
referred to in sub-section (1) may  amount  to  contradiction  if  the  same
appears to be significant  and  otherwise  relevant  having  regard  to  the
context in which such omission occurs and whether any omission amounts to  a
contradiction in the particular context shall be a question of fact.

15.         Section 162 Cr.P.C. bars use of statement of witnesses  recorded
by the police except for  the  limited  purpose  of  contradiction  of  such
witnesses as indicated there. The statement made by  a  witness  before  the
police under Section 161(1) Cr.P.C. can be used  only  for  the  purpose  of
contradicting  such witness on what he has stated at the trial as laid  down
in the proviso to Section 162 (1) Cr.P.C.  The statements under Section  161
Cr.P.C. recorded during the investigation  are  not  substantive  pieces  of
evidence but can  be  used  primarily  for  the  limited  purpose:-  (i)  of
contradicting such witness by an accused under Section 145 of Evidence  Act;
(ii) the contradiction of such witness also by the prosecution but with  the
leave of the Court and (iii) the         re-examination of  the  witness  if
16.         Court cannot suo moto make  use  of  statements  to  police  not
proved and ask question with reference to them which are  inconsistent  with
the testimony of the witness  in  the  court.   The  words  in  Section  162
Cr.P.C. “if duly proved” clearly show that the record of  the  statement  of
witnesses cannot be admitted in evidence straightway nor can be looked  into
but they must be duly proved for the purpose of contradiction  by  eliciting
admission from the witness during  cross-examination  and  also  during  the
cross-examination  of  the  investigating  officer.   Statement  before  the
investigating officer can be used for contradiction but  only  after  strict
compliance with Section 145 of Evidence Act that is by drawing attention  to
the parts intended for contradiction.
17.         Section 145 of the Evidence Act reads as under:
145. Cross-examination as to previous statements in writing.- A witness  may
be cross-examined as to previous  statements  made  by  him  in  writing  or
reduced into writing, and relevant to  matters  in  question,  without  such
writing being shown to him, or being proved;  but,  if  it  is  intended  to
contradict him by the writing, his attention must, before  the  writing  can
be proved, be called to those parts of it which  are  to  be  used  for  the
purpose of contradicting him.

18.         Under Section 145 of the Evidence Act when it  is   intended  to
contradict the witness by his  previous statement   reduced   into  writing,
the attention of such witness must be called  to those  parts of   it  which
are to be used for the  purpose  of contradicting him,  before  the  writing
can be used.  While recording the deposition of a witness,  it  becomes  the
duty of the trial court to ensure that the  part  of  the  police  statement
with which it is intended to  contradict  the  witness  is  brought  to  the
notice of the witness in his cross-examination.  The  attention  of  witness
is drawn to that part and this must  reflect  in  his  cross-examination  by
reproducing it. If the witness admits the part intended to  contradict  him,
it stands proved and there is no need to further proof of contradiction  and
it will be read while appreciating the evidence.  If he denies  having  made
that part of the statement, his attention must be drawn  to  that  statement
and must be mentioned in the deposition.  By this process the  contradiction
is merely brought on record, but it is yet to be  proved.   Thereafter  when
investigating officer is examined in the  court,  his  attention  should  be
drawn to the passage marked for the purpose of contradiction, it  will  then
be proved in the deposition  of  the  investigating  officer  who  again  by
referring to the police statement will depose about the witness having  made
that  statement.  The  process  again  involves  referring  to  the   police
statement and culling out that part with which the maker  of  the  statement
was intended to be contradicted.   If the witness was  not  confronted  with
that part of the statement with which the defence wanted to contradict  him,
then the court cannot suo moto make use of statements to police  not  proved
in compliance  with  Section  145  of  Evidence  Act  that  is,  by  drawing
attention to the parts intended for contradiction.
19.         In the case at hand, PW-1 was not confronted with his  statement
recorded by the police under Section 161 Cr.P.C. to prove the  contradiction
nor his statement marked for the purpose of contradiction was  read  out  to
the investigating officer.  When neither PW-1 nor the investigating  officer
were  confronted  with  the  statement  and  questioned  about  it,   PW-1’s
statement recorded under Section 161 Cr.P.C. cannot be looked into  for  any
purpose much less to discredit the testimony of  PW-1  and  the  prosecution
20.         PW-1 in his evidence clearly stated that  one  year  before  the
marriage he had sold his land for Rs.2,50,000/- and he has  stated  that  he
withdrew the money from the banks three-four months prior to marriage.   PW-
1 further stated that he withdrew Rs.1,00,000/- from his G.P.F  account  one
year before the marriage  and  deposited  the  money  in  his  Central  Bank
Account, D.B.S. College Branch and whenever he needed, he used  to  withdraw
money from his account.  In his evidence, PW-1 has  clearly  narrated  about
the details of money paid to  the  appellants  i.e.  payment  of  amount  of
Rs.11,000/- and Rs.15,000,/- was given on the occasion of ‘Tika’  ceremony’,
Rs. 50,000/- each paid on three different dates;  fixed  deposit  amount  of
Rs.63,000/- left in the account  of  Archana  which  was  matured  was  also
withdrawn and paid to  the  appellants  on  11.07.1997.   Evidence  of  PW-1
regarding making payments to the appellants is cogent and consistent and  is
amply strengthened by the bank statements. Non-mention of details  of  money
paid to the appellants and the demand of dowry and  cruelty  and  harassment
meted out  to  Archana  in  the  statement  of  PW-1  does  not  affect  the
credibility of PW-1.  As rightly observed by the High Court,  it  cannot  be
expected from a father to narrate everything when he himself  was  in  agony
due to death of his own daughter.
21.         PW2-Santosh Kumar, brother of deceased-Archana  is  a  Geologist
working as a Surveyor in Tehri Dam.  In Tehri, PW-2 has a  quarter  and  his
family resides with him at Tehri and sometimes at Dehradun.  In  August,  as
PW-2 has to go to Bombay for treatment of his  wife,  PW-2  took  leave  for
four days from 11.08.1997 and he went to Dehradun  on  07.08.1997.   In  his
evidence, PW-2 stated that on 09.08.1997 his  sister  Archana  came  to  the
parental house and told  him  that  she  is  continuously  tortured  by  the
appellants and that they are demanding dowry of Rs.5,00,000/- and asked  him
not to tell it to the parents as they will not be in a position  to  arrange
such a big amount of Rs.5,00,000/- and will be worried. PW-2 further  stated
that in order to settle the matter amicably, on the  evening  of  10.08.1997
he went to the matrimonial house of his sister where he  saw  mother-in-law,
father-in-law and husband of Archana  scolding  her  for  not  bringing  the
amount of Rs. 5,00,000/-.   The  appellant-Neelima  Mishra  (mother-in-law),
told PW-2 “…Santosh open your ears and listen if  you  do  not  return  back
immediately after arranging Rs.5,00,000/-, you  keep  your  sister  at  your
home….”. PW-2 deposed that the appellant V.K. Mishra  asked  him  about  the
saving details of PW-2 and all other brothers and their father.  PW-2  tried
to convince them politely and touched their feet but in vain.   PW-2  stated
that as he had to go to Delhi and then to Bombay and it was raining  heavily
and he rushed to the hotel, and stayed in the hotel for the whole night  and
next day in the night he took bus from Dehradun to Delhi  and  then  reached
Bombay by train on 13.08.1997. On 14.08.1997, PW-2 got the information  that
Archana died and on 15.08.1997, PW-2 came to Delhi by air and from Delhi  to
Dehradun by taxi. PW-2 stated that due to VIP visit he was  not  immediately
examined by  the  police  and  that  his  statement  was  recorded  only  on
22.         Evidence of PW-2  is  assailed  contending  that  PW-2  did  not
allege any dowry demand prior to 09.08.1997 and the alleged demand of  dowry
is clearly an afterthought.  It was contended  that  the  stay  of  PW-2  in
hotel at Dehradun on the night of  10.08.1997  and  till  his  departure  to
Delhi on 11.08.1997, despite his parents’ house being situated  at  Dehradun
is unnatural and PW-2 is not a reliable witness. PW-2’s evidence is  further
assailed contending that PW-2 could not have met his  sister  on  09.08.1997
nor he visited Archana’s matrimonial house on 10.08.1997 as he  was  granted
leave only from 11.08.1997 to 14.08.1997 and his  presence  in  Dehradun  on
09.08.1997 and 10.08.1997 is highly doubtful. Evidence of  PW-2  is  further
assailed contending that his parental house  situated  at  Dehradun,  it  is
quite unnatural that PW-2 claims to have stayed in a hotel at  Dehradun  and
strangely after the alleged demand of Rs.5,00,000/-, strangely PW-2 did  not
choose to contact his parents and informed them  about  the  alleged  demand
even though PW-2 stayed in hotel at Dehradun till  11.08.1997.       It  was
submitted that PW-2 had not taken written permission from his department  to
leave the project station at Tehri prior to 11.08.1997 and stay of  PW-2  in
hotel which is only            4-5 kms. away from his parental house  raises
serious doubt about his testimony. It was further submitted  that  statement
of PW-2 that there was a dowry demand of Rs.5,00,000/- was recorded only  on
18.08.1997 whereas PW-2 returned to Dehradun even on 15.08.1997.
23.         Contentions urged assailing credibility of  PW-2  do  not  merit
acceptance.  PW-2 in his evidence had clearly stated that  he  had  come  to
Dehradun from Tehri on 7.08.1997 and was in his parents house till  3.00  pm
on 10.08.1997 when he left  for  the  hotel.   PW-2  clearly  explained  the
reason for his stay at hotel stating that distance  of  his  father’s  house
from Dehradun bus stand is 4-5 kms. and as he wanted to  settle  the  matter
with the in-laws of his sister-Archana  about  their  additional  demand  of
dowry for Rs.5,00,000/-, he left his home to the hotel with his  luggage  at
3.00 o’clock perhaps to settle the matter with in-laws  of  Archana  and  in
order to save time to take the bus on the  night of 10.08.1997,  PW-2  might
have stayed in the hotel at Dehradun.  In his evidence, PW-2 clearly  stated
that he had taken permission to  be  away  from  Tehri  from  07.08.1997  to
10.08.1997 and that he took leave from 11.08.1997 for three-four days to  go
to Bombay  in  connection  with  his  wife’s  treatment  in  Bombay.  PW-2’s
evidence that he met Archana at their parental home on 09.08.1997  and  that
Archana informed him about the demand of  Rs.5,00,000/-  and  cruelty  meted
out to her and that he proceeded to the house of the  appellants  to  settle
the dispute amicably is quite natural and inspires confidence.   PW-2  acted
like a loving brother and probably he did not want to give  tension  to  his
old  parents  and  on  seeing  the  urgency  of  the  matter,  went  to  the
appellants’ house to convince them. By perusal of evidence of  PW-2,  it  is
seen that  he  remained  consistent  throughout  his  cross-examination  and
nothing substantial was elicited to discredit his  version.  Merely  because
PW-2 has not produced documents showing the permission granted to him to  be
away from the headquarters Tehri from 07.08.1997 to 10.08.1997,  version  of
PW-2 cannot be doubted.  The reasons stated by PW-2 for his  stay  in  hotel
is quite convincing and the contention assailing  the  credibility  of  PW-2
was rightly rejected by the trial court and the High Court.
24.         It has been further contended on behalf of the  appellants  that
there was delay in recording the statement  of  PW-2  by  the  investigating
officer  and  therefore  his  evidence  should  be  viewed  with  suspicion,
especially when he did not disclose about the alleged  dowry  demand  before
he left for Dehradun or till his statement   was  recorded  by  the  police.
In this context as pointed out earlier, PW-2 went to  Mumbai  for  treatment
of his wife and on 14.08.1997 he was informed about death of Archana and  on
the next day he returned to Delhi by air and from Delhi he reached  Dehradun
by taxi. In his evidence PW-2 stated that  the  police  being  busy  in  the
programme of Ms. Mayawati, the then  Chief  Minister  of  Uttar  Pradesh  on
17.08.1997, the police did not examine and record his statement and  it  was
only on 18.08.1997 his statement was recorded by the investigating  officer.
Considering the evidence of PW-2, it cannot be  said  that  the  prosecution
was deliberately taking time with a view to concoct a false case and  decide
about the shape to be given to the case.  It is pertinent to point out  that
on  the  delayed  examination  of  PW-2,  no  question  was   put   to   the
investigating officer (PW-14) by the defence.  Had such  question  been  put
to PW-14, he would have certainly explained the reason for not examining PW-
2 from 15.08.1997 to 17.08.1997. Having not done so, the appellants are  not
right in contending that there was delay in recording the statement  of  PW-
25.         It cannot be held as a rule of universal  application  that  the
testimony of a witness becomes unreliable merely because there is  delay  in
examination of a particular    witness.  In Sunil Kumar & Anr. vs. State  of
 Rajasthan,   (2005) 9 SCC 283; it was held that the question  of  delay  in
examining  a  witness  during  investigation  is  material  only  if  it  is
indicative and suggestive of  some  unfair  practice  by  the  investigating
agency for the purpose of introducing a core of witness to  falsely  support
the prosecution  case.   As  such  there  was  no  delay  in  recording  the
statement of PW-2 and even assuming that there was delay in questioning  PW-
2, that by itself cannot amount to any infirmity in the prosecution case.
26.         PW3-Sharad Kumar  Tripathi,  another  brother  of  the  deceased
narrated the incident that took place on 13.08.1997 in the evening at  about
3.10 p.m. a phone call was received by him from the  appellant-Rahul  Mishra
who asked him to reach his home immediately with my father and  disconnected
the phone.  PW-3 stated that he heard voices of scolding and crying  someone
from background and so he called him  and  appellant-Rahul  Mishra  received
the  phone  and  asked  him  to  come  immediately  with  his   father   and
disconnected the phone.  When PW-3 called again, appellant V.K. Mishra  came
on line, who shouted at PW3 at a very high  tone  asking  him  to  take  his
sister and that they will not keep her.  When PW-3  reached  there,  one  of
the tenants in the appellants’ house told him that white  froth  was  coming
out of Archana’s mouth and that she was taken  to  Doon  Hospital  and  PW-3
rushed to the hospital where he came to know that Archana consumed  ‘Baygon’
poison and died of poisoning.
27.         Vijay Kumar Sharma (PW-6), tenant-neighbour of the accused,  has
stated that he has never heard any shouting, screaming  from  the  house  of
the appellants and the couple was living  happily.   Placing  reliance  upon
the evidence of this witness, appellants contended that had there  been  any
dowry demand, there would have been disharmony among the couple which  would
have definitely been known to neighbours like PW-6.  It is to be noted  that
in a case where demand of dowry is alleged such demands are confined  within
the four walls of the house and known only to the members of both  sides  of
the family. In such cases, independent and direct evidence  with  regard  to
the occurrences is ordinarily not available.  That is  why  the  Legislature
has introduced Sections 113A and 113B in  the  Evidence  Act  by  permitting
presumption to be raised in certain circumstances. Evidence of PW-6, in  our
view, does not in anyway advance the case of the appellants.
28.         Defence placed much  reliance  upon  three  documents:  (i)  the
suicide note written by the deceased;        (ii)  inland  letter  allegedly
found in the trunk and lapses in the  investigation  and  (iii)  the  letter
said to have been written by the deceased victim to her brother-in-law.  The
appellants vehemently contended that PW-14-investigating officer  failed  to
carry out  fair  investigation  regarding  the  above  three  documents  and
submitted that those three documents  become    more  vital  on  account  of
belated and self-contradictory evidence with regard to demand of dowry.
29.         Mr. Mukesh Giri, learned Addl. Advocate  General  appearing  for
the State, and Mr. Ratnakar Dash, learned Senior Counsel appearing  for  the
informant submitted  that  the  appellants  have  fabricated  three  letters
probably on legal advice and produced the same  at  a  belated  stage  while
making application for bail and the appellants have not taken any  steps  to
prove the genuineness of the documents  and  rightly  those  documents  were
rejected by the trial court as well as by the High Court.
30.         So far as the suicide note is  concerned,  Archana  is  said  to
have stated that she  is  taking  the  step  “suicide”  because  her  mental
condition is not good and that nobody should be  held  responsible  for  her
act.  It is pertinent to note that suicide note was  not  discovered  during
investigation but it was  later  produced  by  the  appellants.   When  PW-1
(father of Archana) was confronted with the suicide note, PW-1 denied it  to
be in the hand writing of Archana.   Appellants  have  not  taken  steps  to
prove the suicide note to be in the hand writing of Archana.  Even  assuming
the suicide note to be true, the fact remains that the death of Archana  was
unnatural. The contents of the  suicide  note  does  not  affect  consistent
version of PW-1 and PW-2.
31.         Another document relied upon by  the  appellants  is  an  inland
letter dated 10.08.1997 purportedly written by a person  with  whom  Archana
is said to have had love affair. According to  the  appellants  Archana  had
love affair before her marriage with a  boy  who  after  Archana’s  marriage
started blackmailing her to reveal the love affair and the alleged  abortion
and due to this  reason  Archana  became  upset  and  committed  suicide  by
consuming poison. Paper No.7 Kha/1 was submitted to the  court  of  sessions
during the hearing of bail  application  of  the  accused.   Learned  Senior
Counsel for the accused Mr. Luthra  and  Mr.  K.T.S.  Tulsi  contended  that
investigating officer had not taken any efforts to  investigate  about  this
significant  lead  which  would  have  knocked   the   foundation   of   the
complainant’s case raising bonafide doubts.  Assailing  the  credibility  of
the investigation, interalia, the following contentions were raised:
(a)   There was no investigation about the classmates or friends  from  whom
the identity of the writer of the letter could have been established;

(b)   Investigating officer had neither tried to ascertain  the  date,  time
and place of movement of the deceased-Archana during her stay at  the  house
of her parents nor did he ascertain the people  who  visited  her  when  she
was at home nor whom the deceased visited while  she was there;

(c)   Though in the letter it  was  stated  that  Archana’s  brother-Santosh
knows about the affair there was no investigation by PW-14 in this regard;

(d)   The investigating officer did not make any efforts  to  establish  the
identity of purported friend one Singh Sahib referred to in the  letter  nor
any effort made to recover the letters mentioned in the said  inland  letter

Contending  that  investigating  officer  made  no  efforts  to  conduct  an
impartial investigation, the  learned  Senior  Counsel  submitted  that  the
investigating officer made no efforts  to  conduct  impartial  investigation
which coupled with the embellishments in the prosecution case regarding  the
demand of dowry raise serious  doubts  arise  about  the  prosecution  case.
Learned Senior Counsel further submitted that there is a  serious  lapse  on
the part of the  investigating  officer  in  ascertaining  the  truth  which
entitles the accused to urge the Court to draw an adverse inference  against
the prosecution and investigation under Section 114(g) of the  Evidence  Act
 and placed reliance upon the judgments of this  Court  in  Tomaso  Bruno  &
Anr. vs. State of U.P., (2015) 1 SCALE 498 and Mussauddin Ahmed vs.State  of
Assam, (2009) 14 SCC 541.
32.              Refuting the contention of the appellants on the lapses  in
the investigation and contending that any lapse in  the  investigation  does
not affect the core of the prosecution case,  the  respondents  have  placed
reliance upon the judgment of this  Court  in  State  of  Karnataka  vs.  K.
Yarappa Reddy, (1999) 8 SCC 715, wherein this Court held as under:
“…..It can be a guiding principle that as investigation is not the  solitary
area for judicial scrutiny in a criminal trial, the conclusion of the  court
in  the  case  cannot  be  allowed  to  depend  solely  on  the  probity  of
investigation. It is well-nigh settled that even  if  the  investigation  is
illegal or even suspicious the rest of  the  evidence  must  be  scrutinized
independently of the  impact  of  it.  Otherwise  the  criminal  trial  will
plummet to the level of the investigating officers  ruling  the  roost.  The
court must have predominance and pre-eminence in criminal  trials  over  the
action taken by investigating officers. Criminal justice should not be  made
a casualty for the wrongs committed by the  investigating  officers  in  the
case. In other words, if the court is convinced  that  the  testimony  of  a
witness to the occurrence is true the court is free to act on it albeit  the
investigating officer’s suspicious role in the case….”

33.   Inland letter Kha7/1 was not discovered during investigation  but  the
same was produced by the accused in a bail application filed on  29.08.1997.
 Thereafter on the request made by the accused,  investigating  officer  was
directed to investigate upon the  same.   As  noticed  earlier,  the  inland
letter was not discovered during the investigation;  but  brother-in-law  of
Archana is said to have discovered the inland letter  and  also  the  letter
allegedly written by Archana to her  brother-in-law  from  the  suitcase  of
deceased-Archana.  Brother-in-law who  is  said  to  have  discovered  those
letters was not examined in the court.  No explanation is  forthcoming  from
the accused as to why the same was not  handed  over  to  the  investigating
officer.  We have also perused the original of the  inland  letter  and  the
postal seal in the said  letter  was  not  clear.   In  his  evidence  PW14-
investigating officer had specifically stated that  he  tried  to  ascertain
from which post office the inland letter was dispatched  but  he  could  not
identify the same.  When the seal  on  the  inland  letter  was  not  clear,
investigating officer cannot be faulted in conducting further  investigation
in connection with the said inland letter.  The fact that  it  was  produced
on 29.08.1997 along with  the  bail  application  raises  doubts  about  the
genuineness of the said inland letter.  When bail application was filed,  by
that time possibly there would have been  legal  advice  and  deliberations.
The possibility  of  such  an  inland  letter  being  fabricated  to  create
evidence to make a possible defence cannot be  ruled  out  and  rightly  the
courts below recorded concurrent findings rejecting the said letter.
34.         Deceased-Archana was an educated girl.  If  really  she  was  in
love with a boy, she could have married him even against the wishes  of  her
parents.  As to the genuineness of the inland letter, as pointed out by  the
trial court, it is difficult to believe that deceased Archana had  preserved
the same so that it may reach the hands of  her  husband  and  her  in-laws.
Considering the defence plea regarding the inland letter,  the  trial  court
rightly observed that it is natural that  a  sensible  lady  after  marriage
would not have kept it so safely.
35.   Insofar as the letter allegedly written by  the  deceased  to  Rahul’s
brother-in-law,  like  two  other  documents,  this  letter  was  also   not
recovered during investigation but produced by the accused  along  with  the
bail application.  Having written such a letter to  her  brother-in-law,  it
is strange that without posting the same, the deceased would have  kept  the
letter in the suitcase.  When confronted with the letter, PW-1 denied it  to
be in the hand writing of Archana.  The  accused  had  also  not  taken  any
steps to send the  documents  to  hand  writing  expert  for  obtaining  the
opinion of the hand writing expert by summoning  the  admitted  writings  of
deceased-Archana. If  the  investigating  officer  had  omitted  to  do  the
investigation regarding the documents produced by the accused in the  court,
the accused could have taken steps to prove the  documents  to  substantiate
their defence.  Having not done  so,  the  accused  cannot  turn  round  and
contend that there were lapses  on  the  part  of  the  investigation  which
vitally affect the prosecution case.
36.   The investigating officer is not obliged to  anticipate  all  possible
defences and investigate in that angle. In any event, any  omission  on  the
part of  the  investigating  officer  cannot  go  against  the  prosecution.
Interest of justice demands that such acts or omission of the  investigating
officer should not be taken in favour of the accused or otherwise  it  would
amount to placing a premium upon such omissions.
37.         In Sher Singh @ Partapa vs. State of Haryana,  (2015) 1 SCR  29,
 it had been held therein that the use of word ‘shown’ instead  of  ‘proved’
in Section 304B IPC indicates that the onus cast on  the  prosecution  would
stand satisfied on the anvil of a mere  preponderance  of  probability.   In
other words, ‘shown’ will have to be read up to mean ‘proved’  but  only  to
the extent of preponderance of probability.  Thereafter, the  word  ‘deemed’
used in that Section is to be read down to require an accused to  prove  his
innocence, but beyond reasonable doubt.  The  ‘deemed’  culpability  of  the
accused  leaving  no  room  for  the  accused  to   prove   innocence   was,
accordingly, read down to a strong ‘presumption’ of  his  culpability.   The
accused is required to rebut this  presumption  by  proving  his  innocence.
The same view was reiterated in Ramakant Mishra @ Lalu  etc.  vs.  State  of
U.P.,                     2015 (3) SCALE 186.
38.         Where the prosecution has shown that  ‘soon  before  her  death’
the deceased was subjected to cruelty or harassment by the  husband  or  in-
laws in connection with demand for  dowry,  the  presumption  under  Section
113B of Evidence Act arises and the Court shall  presume  that  such  person
who had subjected the woman to cruelty or harassment in connection with  any
demand for dowry shall be presumed to have  caused  the  dowry  death.   The
presumption that arises in such cases may be rebutted by the accused.
39.         Prosecution has established beyond reasonable doubts that  ‘soon
before her death’ Archana was subjected to cruelty  and  harassment  by  her
husband and her in-laws in connection with  demand  of  dowry.  The  accused
were not successful in rebutting the presumption raised under  Section  113B
of the Evidence Act.  Concurrent findings of  the  courts  below  convicting
the appellants under Section 304B IPC is based upon proper  appreciation  of
evidence and convincing reasons. The  courts  below  rightly  convicted  the
appellants under Sections 304B and 498A IPC  and  Sections  3  and  4  Dowry
Prohibition Act and in exercise of jurisdiction under  Article  136  of  the
Constitution of India, we find no ground warranting  interference  with  the
conviction of the appellants.
40.         For the offence  under  Section  304B  IPC,  the  punishment  is
imprisonment for a term which shall not be less than seven years  but  which
may extend to imprisonment for  life.   Section  304B  IPC  thus  prescribes
statutory minimum of seven years.  In Kulwant Singh  &  Ors.  vs.  State  of
Punjab, (2013) 4 SCC 177,  while dealing with dowry death Sections 304B  and
498A IPC in which death was  caused  by  poisoning  within  seven  years  of
marriage conviction was affirmed.  In the said case, the  father-in-law  was
about eighty years and  his  legs  had  been  amputated  because  of  severe
diabetes and mother-in-law was seventy eight years of age  and  the  Supreme
Court held impermissibility of  reduction  of  sentence  on  the  ground  of
sympathy below the statutory minimum.
41.         As per prison records, the accused-Rahul Mishra  is  in  custody
for more than five years which includes  remission.   Bearing  in  mind  the
facts and circumstances of the case and the occurrence was of the year  1997
and that the accused Rahul Mishra is in custody for more  than  five  years,
interest of justice would be met if life  imprisonment  awarded  to  him  is
reduced to imprisonment for a period of ten years.  Appellants  V.K.  Mishra
and Neelima Mishra, each of them have undergone imprisonment  of  more  than
one year.  Appellants No. 1 and 2 are aged  about  seventy  and  sixty  four
years and are said to  be  suffering  from  various  ailments.   Considering
their age and ailments  and  facts  and  circumstances  of  the  case,  life
imprisonment imposed on appellants V.K. Mishra and Neelima  Mishra  is  also
reduced to imprisonment of seven years each.
42.         In the result while we uphold the conviction of  the  appellants
under Section 304B IPC and other offences,  sentence  of  life  imprisonment
imposed on Rahul Mishra is reduced to ten years. So  also  the  sentence  of
life imprisonment imposed on V.K. Mishra and Neelima Mishra  is  reduced  to
seven years each.  The conviction of the appellants for other  offences  and
sentence of  imprisonment  imposed  on  each  one  of  them  are  confirmed.
Judgment of the High Court shall stand modified to the above extent and  the
appeals partly allowed and disposed off.


                                     (R.K. AGRAWAL)

                                                        (R. BANUMATHI)
New Delhi;
July 28, 2015


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