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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

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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 2

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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 3

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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 4

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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 5

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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.  

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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.   

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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 8

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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 9

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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 10

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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 11

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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 12

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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

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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

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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.

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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 16

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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.

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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 18

Page 19

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 19

Page 20

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. 20

Page 21

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.

21

Page 22

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 22

Page 23

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 23

Page 24

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 24

Page 25

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 25

Page 26

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.   26

Page 27

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” 27

Page 28

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 28

Page 29

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

29

Page 30

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

30

Page 31

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

31

Page 32

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, 32

Page 33

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 33

Page 34

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 34

Page 35

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 35

Page 36

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 36

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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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