V.K.MISHRA Vs STATE OF UTTARAKHAND
Bench: T.S. THAKUR,R.K. AGRAWAL,R. BANUMATHI
Case number: Crl.A. No.-001247-001247 / 2012
Diary number: 35714 / 2011
Advocates: M. A. CHINNASAMY Vs
DINESH KUMAR GARG
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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
Page 2
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
Page 3
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
Page 4
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
Page 5
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
Page 10
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
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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.
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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
Page 37
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
37