LAW FOR ALL

Tuesday, July 28, 2015

Close-Up Whitening, and the other products, i.e. Close-Up Red/Blue/Green is the additional presence of 2.8% and 0.2% w/s Silicon Agglomerate and Bluer Agglomerates respectively in Close-Up Whitening and absence of 0.1% w/w 2,4,4 Tri Chloro 2 hydroxy Diphenyl Ehter in this product in comparison with the other three products. It was also found that as far as Close-Up Whitening is concerned, there was presence of 'uniformity dispersed blue speckles'. - M/s. Hindustan Lever Limited, Mumbai (for short, 'HLL') since 1998. Major brands of HLL manufactured by the assessee are Close-Up Red, Close-Up Blue, Close-Up Green and Pepsodent falling under Chapter 33 of the Excise Tariff. The assessee is registered with the appellant/Revenue and has been paying the excise duty on the aforesaid products under Chapter sub-heading 3306.10 of the tariff. There is no dispute about these products.=We may record that a finding is arrived at by the Tribunal to the effect that Close-Up Whitening is not a toothpaste but a dental cleaner. We are convinced that this finding is perfectly just and proper for the following reasons: (a) The Tribunal has pointed out the differences which are noted above and accepted by the Department itself. From these differences, it is held that ingredients and ratio of all the inputs which go into the manufacturing of a toothpaste and dental cleaner are different and varying. The dental cleaner, in addition, has two more ingredients, namely, Silicon Agglomerate and Bluer Agglomerates, which play an active role as abrasive. (b) Even the manufacturing process of Close-Up toothpaste and Close-up Whitening is different. While the total stages for manufacturing toothpaste were nine, the number of stages for manufacture of Close-Up Whitening were eleven. It takes 120 minutes to manufacture a toothpaste tube, while it takes 155 minutes to effect the manufacture of Close-Up Whitening. (c) Statement of one Mr. N.H. Bijlani, the only expert in this case and whose statement was recorded on January 09, 2002, was referred to by the Tribunal. In this statement, Mr. Bijlani has explained the difference between toothpaste and dental cleaners and has opined that Close-Up Whitening dental cleaner cannot be equated with toothpaste. (d) The Tribunal has also found that as per records, classification of the same product in an earlier avtar/brand was acceptable to the Department as the same was classified under a different name for all these years when the rate of duty under Heading 3306.90 were higher than that under Heading 3306.10. It, thus, observed that mere change of duty and brand name cannot be the reason to alter classification. (e) Another important aspect, in conjunction with aforesaid features which has to be kept in mind, is that in the instant case even Food and Drug Authorities (FDA) from where prior permission is needed for manufacturing 'toothpaste' and sale thereof, had not registered the product in question as 'toothpaste' but as a dental cleaner. It becomes a supporting factor along with other features of the product, which have been taken note of and discussed above. The upshot of the aforesaid discussion would be to hold that Close-Up Whitening dental cleaner is not a 'toothpaste' but other form of dental hygiene and, therefore will have to be classified under sub-heading 3306.90 as a consequence. These appeals are found bereft of any merits and are, accordingly, dismissed. No costs.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5902-5909 OF 2005

|COMMISSIONER OF CENTRAL EXCISE, | |
|VAPI |.....APPELLANT(S) |
|VERSUS | |
|M/S. GLOBAL HEALTH CARE PRODUCTS | |
|PARTNERSHIP FIRM & ORS. |.....RESPONDENT(S) |

W I T H
CIVIL APPEAL NO. 3569 OF 2006

J U D G M E N T

A.K. SIKRI, J.
The respondent No.1 (hereinafter referred to as the
'assessee') is engaged in the manufacture of different brands of toothpaste
and these are manufactured exclusively for M/s. Hindustan Lever Limited,
Mumbai (for short, 'HLL') since 1998. Major brands of HLL manufactured by
the assessee are Close-Up Red, Close-Up Blue, Close-Up Green and Pepsodent
falling under Chapter 33 of the Excise Tariff. The assessee is registered
with the appellant/Revenue and has been paying the excise duty on the
aforesaid products under Chapter sub-heading 3306.10 of the tariff. There
is no dispute about these products.

From July 01, 2001, a new product known as 'Close-Up Whitening' was
introduced by the assessee. The assessee classified this product under
Chapter sub-heading 3306.90. The Revenue treated the aforesaid
classification as erroneous as according to it Close-Up Whitening also
falls under Chapter sub-heading 3306.10 and not 3306.90. It also suspected
that this product was deliberately misclassified in the said heading to
evade payment of proper central excise duties by resorting to assessment of
the product under Section 4 of the Central Excise Act, 1944 (hereinafter
referred to as the 'Act') instead of assessment under Section 4A thereof.
Investigation into the matter was initiated resulting into searching of the
premises of the assessee. Some documents, which the Revenue claims to be
incriminating in nature, were seized under Section 12 of the Act, including
a Box File with Heading 'Production Manual', namely, the literature
containing pages 1 to 235 issued by the Dental Information Centre of HLL.

On the scrutiny of these documents, the Revenue noticed that the difference
in raw materials used for the product in question, namely, Close-Up
Whitening, and the other products, i.e. Close-Up Red/Blue/Green is the
additional presence of 2.8% and 0.2% w/s Silicon Agglomerate and Bluer
Agglomerates respectively in Close-Up Whitening and absence of 0.1% w/w
2,4,4 Tri Chloro 2 hydroxy Diphenyl Ehter in this product in comparison
with the other three products. It was also found that as far as Close-Up
Whitening is concerned, there was presence of 'uniformity dispersed blue
speckles'. Statements of certain persons were also recorded. On the basis
of the aforesaid material, the Revenue took the position that the aforesaid
differences did not change the essential character of the product in
question which still remained 'toothpaste' and, therefore, it was
classifiable under Chapter sub-heading 3306.10.

Show-cause notice dated March 21, 2002 was issued proposing confiscation of
the goods and since these goods had already been provisionally released on
payment of full excise duty as leviable on the goods under Chapter sub-
heading 3306.10, show-cause notice stated as to why the amount of
differential duty amounting to ?22,64,176 be not confirmed under the
provisions of Section 11A(1) of the Act and why redemption fine in lieu of
confiscation as well as penalty be not imposed. The assessee filed its
reply thereto contending that it was not a toothpaste and, therefore,
rightly classified by it under sub-heading 3306.90. The aforementioned
contention of the assessee was brushed aside by the Commissioner in his
Order-in-Original dated December 10, 2003, thereby confirming the excise
duty demand as mentioned in the show-cause notice. He, inter alia,
recorded the following findings in his order:
“(i) Close Up Whitening was known in the market or to the trade and public
as tooth paste for cleaning the teeth as such it was nothing but tooth-
paste used for cleaning the teeth.

(ii) M/s. Global Health Care Products in collusion with M/s. Hindustan
Lever Ltd. by willfully suppressing the fact that Close-up Whitening was a
variant of Close Up tooth paste classifiable under Tariff Heading 3306.10
failed to show particulars of classification, assessable value and duty
leviable with an intention to evade payment of applicable central excise
duties.

(iii) The contention of M/s. Global Health Care products that the product
Close Up Whitening was classified under chapter sub heading No. 3306.90 was
not accepted.

(iv) The said product was correctly classified under sub heading 3306.10
of the Tariff attracting the provisions of Section 4A of the Act.”

Aggrieved by the aforesaid order, the respondents herein filed appeals
before the Custom Excise & Service Tax Appellate Tribunal, Mumbai (for
short, the 'Tribunal'). These appeals have been allowed by the Tribunal
vide impugned order dated March 11, 2005. In these appeals, validity and
correctness of the aforesaid order of the Tribunal is questioned by the
Revenue.

Before proceeding further, it would be necessary to take note of the exact
language of the relevant entries. As mentioned above, it is the entry
Heading 3306 of Central Excise Tariff Act, 1985, which is attracted in the
present case. The only question is as to whether the product in question
is to be classified under sub-heading 3306.90 or 3306.10. Chapter Heading
3306 of the Tariff Act, with the aforesaid sub-headings, is reproduced
below:
|33.06 |Preparations for oral or dental hygiene, |
| |including dentifrices (for example, |
| |toothpaste and tooth powder and denture |
| |fixative pastes and powders) |
|3306.10 |Tooth powders and toothpaste |
|3306.90 |Other. |

The Chapter Heading makes it clear that it covers various preparations for
oral and dental hygiene. These preparations specifically include
dentifrices. Examples of such oral and dental hygiene are also given, like
toothpaste, tooth powder, denture fixative pastes and powders. Out of
these, two products which are covered by sub-heading 3306.10 are toothpaste
and tooth powder. Other oral and dental hygiene preparations fall under
the reminder sub-heading, i.e. 3306.90, nomenclature of which is 'Other'.
Further, as pointed out above, the Revenue treats Close-Up Whitening as
'toothpaste'. The plea of the assessee, on the other hand, is that it is
not toothpaste but a 'dental cleaner', which is different from toothpaste
and, therefore, has to necessarily be covered by the residual sub-heading,
i.e. 3306.90. Therefore, the moot question is as to whether Close-Up
Whitening is toothpaste or not. If it is found to be toothpaste then the
stand of the Revenue would be justified. On the other hand, if the product
does not qualify to be a toothpaste, then the assessee stands vindicated.

Having noticed the controversy involved, we would like to point out the
main ingredients of the product at this stage:
There is no dispute that most of the ingredients of the product
Close-Up Whitening are the same which are used in the manufacture of the
other products, namely, Close-Up Red/Blue/ Green, which are treated as
toothpaste by the assessee itself. There are, however, additional
ingredients used in the manufacture of the product in question, which are
accepted by the Revenue also and noticed above. Apart from additional
presence of Silicon Agglomerate and Bluer Agglomerate of specified
percentage and absence of Tri Chloro 2 hydroxy Diphenyl Ether, there is a
presence of uniformity dispersed blue speckles in Close-Up Whitening.
There is also additional step of 'addition of silica agglomerates'. In
fact, it is this ingredient which felicitates at getting uniformity
dispersed speckles. It is on the basis of these additional factors, one
has to determine as to whether Close-Up Whitening loses the character of
toothpaste and assumes the characteristics of another product, namely,
dental cleaner.

A reading of the order of the Commissioner, to which our attention was
drawn by Mr. K. Radhakrishnan, learned senior counsel appearing for the
appellant, with much emphasis, would disclose that the Commissioner relied
upon HSN Notes, i.e. Harmonized Commodity Description and Coding System,
wherein the preparation of oral and dental hygiene is mentioned in the
following form:
|33.06 - |PREPARATIONS FOR ORAL OR DENTAL HYGIENE, INCLUDING|
| |DENTURE FIXATIVE PASTES AND POWDERS: YARN USED TO |
| |CLEAN BETWEEN THE TEETH (DENTAL FLOSS), IN |
| |INDIVIDUAL RETAIL PACKAGES. |
| | |
|3306.10 |Dentifrices |
| | |
|3306.20 |Yarn used to clean between the teeth (dental |
| |floss) |
| | |
|3306.90 |Other |

This heading covers preparations for oral or dental hygiene such as:

(I) Dentifrices of all types:

(1) Tooth pastes and other preparations for teeth. These are substances
or preparations used with a toothbrush, whether for cleaning or polishing
the accessible surfaces of teeth or for other purposes such as anticaries
prophylactic treatment.

Toothpastes and other preparations for teeth remain classified
in this heading, whether or not they contain abrasives and whether or not
they are used by dentists.

(2) Denture cleaners, i.e., preparations for cleaning or polishing
dentures, whether or not they contain agents with abrasive properties.

(II) Mouth washes and oral perfumes.

(III) Denture fixative pastes, powders and tablets.

The heading also covers yarn used to clean between the teeth,
in individual retail packages (dental floss).”

The Commissioner, thus, noted that in the HSN Notes, sub-heading 3306.10
deals with dentifrices. The Commissioner noted that the meaning of
dentifrices as per the Concise Oxford Dictionary is 'a paste or powder for
cleaning of teeth'. On that basis, he concluded that the product in
question was paste, namely, the toothpaste for cleaning the teeth and,
therefore, would fall under sub-heading 3306.10. En passe, the
Commissioner also observed that there is no major difference in these
products, namely, Close-Up Whitening and Close-Up Red/ Blue/Green, except
one ingredient used in the manufacture of Close-Up Whitening and the
addition of that ingredient does not change the purpose, nature as well as
definition of the product in a common market parlance. He observed that in
the market the product was known as toothpaste. He also observed that it
is treated as toothpaste as per the product manual issued by the Dental
Invocation Centre, Mumbai. Discussion is summed up in para 32 of the order
passed by the Commissioner, which reads as under:
“32. As narrated in the SCN that the tooth paste, being dentifrice has
been correctly classified under the HSN and the Central Excise Tariff has
been based on HSN. Accordingly it is essential to follow the correct
classification of the product in question as described and classified under
the relevant chapter of HSN. In this connection it may be mentioned that
the Hon'ble Supreme Court in the case of CCE, Shillong vs. Wood Craft
Product Ltd. Reported in 1995 (77) ELT 23 (SC) in para 18 has held that the
structure of Central Excise Tariff is based on the internationally accepted
nomenclature found in the HSN and therefore any dispute relating to tariff
classification must, as far as possible be resolved with reference to the
nomenclature indicated by the HSN unless there be an express different
intention indicated in the Central Excise Tariff Act, 1985 itself.

Further it may be mentioned that the Hon'ble Bombay High Court
in the case of Jagdish D. Devgekar Vs. Collector of Central Excise, Poona
reported in 1978 (2) ELT (J581) in para 6 has held that the correct test in
interpreting any item mentioned in the first schedule to the Central Excise
Act is to see the commercial sense in which the item is understood or the
sense in which traders or persons dealing in that terms understand it and
not the technical or scientific sense.

Even it may be mentioned that the Hon'ble Tribunal in case Veto
Co. Vs. CCE reported in 1992 (62) ELT 584 (T) in para 6 has held that the
goods have to be classified under the tariff schedule according to their
popular meaning or as they are understood in their commercial sense and not
as per their scientific or technical meaning. While holding so the Hon'ble
Tribunal has referred to the observations of the Hon'ble Supreme Court's
judgment in case of Plasmac Machine Mfg. Co. Pvt. Ltd. Vs. CCE reported in
1991 (51) ELT 161 (SC) (Para 13).”

The aforesaid approach adopted by the Commissioner has been found fault
with by the Tribunal. The Tribunal pointed out that there was material
difference in the sub-heading 3306.10 in the Indian statute when contrasted
with Harmonized Commodity Description and Coding System. Whereas, as per
the tariff entry 3306.10 in the Excise Act, it is 'tooth powder' and
'toothpaste', under the Harmonized Commodity Description and Coding System,
what is mentioned is 'dentifrices'. It is further noticed by the Tribunal
that dentifrices was more generic in nature as it recognized all three
types of products, namely, (i) toothpaste, (ii) other preparations for
teeth and (iii) denture cleaners, than tooth powders and toothpaste. Thus,
when under Indian statutory regime there is a restricted sub-heading under
3306.10, namely, tooth powder and toothpaste only, the approach of the
Commissioner in taking aid of HSN Notes was erroneous. Discussion on this
aspect runs as follows:
“A perusal of the HSN notes would indicate that all three types of
'Dentifrices' are recognized as (i) 'Toothpaste', (ii) Other preparations
for teeth, and (iii) 'Denture cleaners'. The Note further explains that
“Dentifrices” to include 'toothpaste' and “other preparations for teeth”
whether for cleaning or polishing the assessable surface of teeth or for
other purposes such an Anticaries prophylactic treatment. The Note also
enumerates that 'toothpaste' and 'other preparations for teeth' remains
classified under Heading 3306 whether or not they contain abrasives and
whether or not they are used by dentist. The correct scope of the heading
as per the submission of the appellants is that when one refers to HSN item
3306 and the bifurcations as also under CETA 1985 there is a variance seen.
In other words, this bifurcation under Heading 3306 for HSN and is not
pari materia and under CETA 1985 and therefore the sub heading structure of
HSN would not apply to CETA. The CETA proves preparation for oral or
dental hygiene including Dentifrices and Denture Fixative paste and powders
under Heading 3306 and at the four digit level it is para material HSN.
The scope of sub heading 3306.10 of CETA 1985 restricts it to only 'tooth
powder and paste' and any entity which is not a 'toothpowder or toothpaste'
would be covered under heading 3306.90. This submission has to be upheld.”

We find ourselves in agreement with the aforesaid approach of
the Tribunal having regard to the cogent reasons given by it.

This Court in the case of Camlin Limited v. Commissioner of Central Excise,
Mumbai[1] held that if the entries under HSN and the entries under the
Central Excise Tariff are different, then reliance cannot be placed upon
HSN Notes for the purposes of classification of goods under Central Excise
Tariff. This is so stated in para 24 of the judgment that makes the
following reading:
“24. In our considered view, the Tribunal erred in relying upon the HSN
for the purpose of marker inks in classifying them under Chapter Sub-
Heading 3215.90 of the said Tariff. The Tribunal failed to appreciate that
the entries under the HSN and the entries under the said Tariff are
completely different. As mentioned above, it is settled law that when the
entries in the HSN and the said Tariff are not aligned, reliance cannot be
placed upon HSN r the purpose of classification of goods under the said
Tariff. One of the factors on which the Tribunal based its conclusion is
the entries in the HSN. The said conclusion in the order of the Tribunal
is, therefore, vitiated and, accordingly, set aside. We agree with the
findings recorded by the Commissioner (Appeals).”

The issue, therefore, has to be decided dehors HSN Notes as aid thereof
cannot be taken in the instant case.

Faced with the aforesaid position, Mr. Radhakrishnan argued that the
Commissioner has also come to the conclusion that mere addition of one
ingredient does not change the purpose, nature as well as character of the
product and further the product was known in the market as 'toothpaste'.
The Tribunal has differed with the aforesaid view.

In the first place, it is pointed out that there is no evidence on record
placed by the Revenue which would reflect that the product in question is
known to the consumers as toothpaste. When this was pointed out to Mr.
Radhakrishnan, he was unable to pinpoint any evidence in support that was
led by the Revenue.

We may record that a finding is arrived at by the Tribunal to the effect
that Close-Up Whitening is not a toothpaste but a dental cleaner. We are
convinced that this finding is perfectly just and proper for the following
reasons:
(a) The Tribunal has pointed out the differences which are noted above
and accepted by the Department itself. From these differences, it is held
that ingredients and ratio of all the inputs which go into the
manufacturing of a toothpaste and dental cleaner are different and varying.
The dental cleaner, in addition, has two more ingredients, namely, Silicon
Agglomerate and Bluer Agglomerates, which play an active role as abrasive.

(b) Even the manufacturing process of Close-Up toothpaste and Close-up
Whitening is different. While the total stages for manufacturing
toothpaste were nine, the number of stages for manufacture of Close-Up
Whitening were eleven. It takes 120 minutes to manufacture a toothpaste
tube, while it takes 155 minutes to effect the manufacture of Close-Up
Whitening.

(c) Statement of one Mr. N.H. Bijlani, the only expert in this case and
whose statement was recorded on January 09, 2002, was referred to by the
Tribunal. In this statement, Mr. Bijlani has explained the difference
between toothpaste and dental cleaners and has opined that Close-Up
Whitening dental cleaner cannot be equated with toothpaste.

(d) The Tribunal has also found that as per records, classification of
the same product in an earlier avtar/brand was acceptable to the Department
as the same was classified under a different name for all these years when
the rate of duty under Heading 3306.90 were higher than that under Heading
3306.10. It, thus, observed that mere change of duty and brand name cannot
be the reason to alter classification.

(e) Another important aspect, in conjunction with aforesaid features
which has to be kept in mind, is that in the instant case even Food and
Drug Authorities (FDA) from where prior permission is needed for
manufacturing 'toothpaste' and sale thereof, had not registered the product
in question as 'toothpaste' but as a dental cleaner. It becomes a
supporting factor along with other features of the product, which have been
taken note of and discussed above.

The upshot of the aforesaid discussion would be to hold that Close-Up
Whitening dental cleaner is not a 'toothpaste' but other form of dental
hygiene and, therefore will have to be classified under sub-heading 3306.90
as a consequence. These appeals are found bereft of any merits and are,
accordingly, dismissed.
No costs.

.............................................J.
(A.K. SIKRI)

.............................................J.
(ROHINTON FALI NARIMAN)

NEW DELHI;
JULY 28, 2015.
-----------------------
[1] (2008) 9 SCC 82

YAKUB ABDUL RAZAK MEMON = In view of the disagreement between us, the Registry is directed to place the papers before Hon'ble The Chief Justice of India, preferably today, so that an appropriate Bench could be constituted and the matter can be heard on merits as soon as possible, preferably tomorrow i.e. on 29.07.2015.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) No. 129 OF 2015

YAKUB ABDUL RAZAK MEMON Petitioner(s)

VERSUS

STATE OF MAHARASHTRA, THR. THE SECRETARY,
HOME DEPARTMENT AND ORS. Respondent(s)

J U D G M E N T

ANIL R. DAVE, J.
Heard the learned senior counsel appearing for both the sides at
length.
It is a fact that the conviction of the petitioner has been confirmed
by this Court and the Review Petition as well as the Curative Petition
filed by the petitioner have also been dismissed by this Court. Moreover,
His Excellency Hon'ble The President of India and His Excellency The
Governor of Maharashtra have also rejected applications for pardon made by
the petitioner, possibly because of the gravity of the offence committed by
the petitioner.
It has been submitted by the learned counsel appearing for the
petitioner that one more application made to His Excellency The Governor of
Maharashtra is still pending.

If it is so, it would be open to His Excellency The Governor of
Maharashtra to dispose of the said application before the date on which the
sentence is to be executed, if His Excellency wants to favour the
petitioner.
Submissions made about the Curative Petition do not appeal to me as
they are irrelevant and there is no substance in them.
In these circumstances, the Writ Petition is dismissed.

.......................J.
[ANIL R. DAVE ]

New Delhi;
July 28, 2015.
NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) No. 129 OF 2015

YAKUB ABDUL RAZAK MEMON Petitioner(s)

VERSUS

STATE OF MAHARASHTRA, THR. THE SECRETARY,
HOME DEPARTMENT AND ORS. Respondent(s)

J U D G M E N T

KURIAN JOSEPH, J.
I regret my inability to agree with my learned brother.
During the course of admission hearing of the petition under Article
32 of the Constitution of India, a question arose as to whether the
Curative Petition in this case has been decided in accordance with law.
The matter was partly heard yesterday and the arguments were deferred for
today on this issue.
Heard Mr. Raju Ramachandran, Mr. T.R.Andhyarujina and Mr. Anand
Grover, learned senior counsel and Mr.Mukul Rohtagi, learned Attorney
General, at length.
Article 21 of the Constitution of India guarantees life to a person
and the person shall be deprived of his life only in accordance with the
procedure established by law. The Curative Petition in Order XLVIII of the
Supreme Court Rules, 2013 is one procedure regarding the remedy available
to a person even after the Review Petition is dismissed.
The synopsis portion of the Curative Petition reads as follows :-
“The present Curative Petition under Article 142 of the Constitution
of India arises in an exceptional case as grave injustice has been caused
to the petitioner whereby his fundamental rights as guaranteed to him under
Articles 14 and 21 of the Constitution of India have been completely
violated. Hence, the petitioner most humbly beseeches this Hon'ble Court
to kindly reconsider its order dated 9.4.2015, in terms whereof, the Review
Petition of the petitioner seeking reconsideration of its Order/Judgment
dated 21.3.2013 in Criminal Appeal No. 1728 of 2007 (reported in (2013) 13
SCC 1) was dismissed.”
(emphasis supplied)
The prayers in the Curative Petition read as follows:-
(a) Allow the present curative petition filed against the order dated
9.4.2015 in Review Petition (Criminal) No. 474 of 2013;
(b) Consequently, restore Criminal Appeal No. 1728 of 2007 decided on
21.3.2013 for hearing; and
(c) Pass any other or further order(s) as this Hon'ble Court may deem fit
in the facts and circumstances of the present case and in the interest of
justice and equity.”

The order passed in the Curative Petition is made available for
perusal in the paperbook of the Writ Petition. It is seen that the order
dated 21.07.2015 dismissing the Curative Petition has been considered by a
Bench of three senior-most Judges of this Court.
Order XLVIII of the Supreme Court Rules, 2013 deals with Curative
Petition and Rule 4(1) and (2) read as follows :-
“4(1) The curative petition shall be first circulated to a Bench of the
three senior-most judges and the judges who passed the judgment complained
of, if available.
(2) Unless otherwise ordered by the Court, a curative petition shall be
disposed of by circulation, without any oral arguments but the petitioner
may supplement his petition by additional written arguments.”
(Emphasis supplied)

'Judgment' is defined under the Supreme Court Rules, 2013 under Order
I Rule 2(k) as follows :-
“'judgment' includes decree, order, sentence or determination of any Court,
Tribunal, Judge or Judicial Officer.”

Therefore, in terms of the Judgment as defined under the Rules, a
Curative Petition has to be circulated to a Bench of three senior-most
Judges of this Hon'ble Court and the Judges who passed the Judgment
complained of, if available.
In the instant case, the Judgment complained of (be it the order
passed in the Review Petition) is passed by a Bench of three Judges
comprising of Hon'ble Sh. Anil R. Dave, J., Hon'ble Sh. J. Chelameswar, J.
and myself, but the Curative Petition is circulated only to the three
senior-most Judges.
It may not also be totally out of context to note that the order
dated 09.04.2015 in the Review Petition is captioned as a Judgment,
apparently, in terms of the definition of 'judgment' under the Supreme
Court Rules. Thus, it is found that the procedure prescribed under the law
has been violated while dealing with the Curative Petition and that too,
dealing with life of a person. There is an error apparent on the face of
the order in the Curative Petition. The mandatory procedure prescribed
under law has not been followed.
Though the learned senior counsel and the learned Attorney General
referred to various grounds available in a Curative Petition, in the nature
of the view I have taken in the matter that the Curative Petition itself
has not been decided in accordance with the Rules prescribed by this Court,
that defect needs to be cured first. Otherwise, there is a clear violation
of Article 21 of the Constitution of India in the instant case.
The learned Attorney General, inter alia, contended that this is not
an issue raised in the writ proceedings. I do not think that such a
technicality should stand in the way of justice being done. When this
Court as the protector of the life of the persons under the Constitution
has come to take note of a situation where a procedure established by law
has not been followed while depriving the life of a person, no technicality
shall stand in the way of justice being done. After all, law is for man
and law is never helpless and the Court particularly the repository of such
high constitutional powers like Supreme Court shall not be rendered
powerless.
In the above circumstances, I find that the order dated 21.07.2015
passed in the Curative Petition is not as per the procedure prescribed
under the Rules. Hence, the Curative Petition has to be considered afresh
in terms of the mandatory requirement under Rule 4 of Order XLVIII of the
Supreme Court Rules, 2013.
In that view of the matter, the death warrant issued pursuant to the
Judgment of the TADA Court dated 12.09.2006, as confirmed by this Court by
its Judgment dated 21.03.2013, of which the Review Petition has been
dismissed on 09.04.2015, is stayed till a decision afresh in accordance
with law is taken in the Curative Petition.
After a decision is taken on the matter, as abovesaid, the Writ
Petition be placed for consideration before the Court.

.......................J.
[KURIAN JOSEPH]

New Delhi;
July 28, 2015.
NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) No. 129 OF 2015

YAKUB ABDUL RAZAK MEMON Petitioner(s)

VERSUS

STATE OF MAHARASHTRA, THR. THE SECRETARY,
HOME DEPARTMENT AND ORS. Respondent(s)

O R D E R

In view of the disagreement between us, the Registry is directed to
place the papers before Hon'ble The Chief Justice of India, preferably
today, so that an appropriate Bench could be constituted and the matter can
be heard on merits as soon as possible, preferably tomorrow i.e. on
29.07.2015.
.......................J.
[ANIL R. DAVE ]

.......................J.
[KURIAN JOSEPH]

New Delhi;
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.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1247 OF 2012

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

Versus

STATE OF UTTARAKHAND & ANR. ...Respondents

With

CRIMINAL APPEAL NO. 1248 OF 2012

RAHUL MISHRA ...Appellant

Versus

STATE OF UTTARAKHAND & ANR. ...Respondents

J U D G M E N T

R. BANUMATHI, J.

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
Cr.P.C.
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
necessary.
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
version.
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
18.08.1997.
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-
2.
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
Kha7/1.

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.
…………………………J.

(T.S. THAKUR)

…………………………J.
(R.K. AGRAWAL)

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

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37

mere payment of fine - Employment

summary trial proceedings and what had the appellant pleaded to as guilty, whether to the allegations in the FIR or to the provision of the IPC or any other particular? Mere payment of fine of Rs.20/- does not go to show that the conviction was validly and legally recorded. Assuming that the conviction is not open to challenge at the present juncture, we cannot but deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opining to have involved moral turpitude, without satisfying the tests laid down in the policy decision of the government. We are rather unhappy to note that all the three courts below, even when invited to judge the matter in the said perspective, went on to hold that the act/s involved in conviction under section 294 IPC per se established moral turpitude. They should have been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 IPC on today's society and its standards, and its changing views of obscenity. The matter unfortunately was dealt with casually at all levels.

Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people through out the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost along them being traffic, municipal and other petty offences under the India;

Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or in experienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine upto a certain limit, say upto Rs.2000/- or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. This can brook no delay, whatsoever.

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Tuesday, July 28, 2015

mere payment of fine - Employment