TMI Blog2015 (7) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... ount one year before the marriage and deposited the money in his Central Bank Account, D.B.S. College Branch and whenever he needed, he used to withdraw money from his account. In his evidence, PW-1 has clearly narrated about the details of money paid to the Appellants i.e. payment of amount of Rs. 11,000/- and Rs. 15,000/- was given on the occasion of 'Tika' ceremony', Rs. 50,000/- each paid on three different dates; fixed deposit amount of Rs. 63,000/- left in the account of Archana which was matured was also withdrawn and paid to the Appellants on 11.07.1997. Evidence of PW-1 regarding making payments to the Appellants is cogent and consistent and is amply strengthened by the bank statements. Non-mention of details of money paid to the Appellants and the demand of dowry and cruelty and harassment meted out to Archana in the statement of PW-1 does not affect the credibility of PW-1. As rightly observed by the High Court, it cannot be expected from a father to narrate everything when he himself was in agony due to death of his own daughter. So far as the suicide note is concerned, Archana is said to have stated that she is taking the step suicide because her menta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 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. Appeal allowed in part. - Criminal Appeal Nos. 1247 and 1248 of 2012 - - - Dated:- 28-7-2015 - T.S. THAKUR, R.K. AGRAWAL AND R. BANUMATHI, JJ. For the Appellant : K.T.S. Tulsi, Sidharth Luthra, Sr. Advs., M.A. Chinnaswamy, V. Senthil Kumar and Satyawan Rathi, Advs. For the Respondent : R.K. Das, Sr. Adv., Mukesh K. Giri, AAG, Dinesh Kumar Garg, Deepak Mishra, Bheem Pratap Singh, Abhishek Atrey, Sumit Rajora and Raj Kamal, Advs. JUDGMENT R. Banumathi, J. 1. These appeals arise out of the judgment dated 26.09.2011 passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No. 42 of 2002, whereby High Court confirmed the conviction of the Appellants Under Section 304B, 498A Indian Penal Code 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentenced to undergo rigorous imprisonment for three years with a fine of Rs. 2,000/- each with default clause. They were also convicted Under Sections 3 and 4 of the Dowry Prohibition Act and were sentenced to undergo rigorous imprisonment for one year with a fine of Rs. 1,000/- each with default clause. All the sentences were ordered to run concurrently. Aggrieved by the verdict of conviction, the Appellants preferred an appeal before the High Court which came to be dismissed confirming the conviction and sentence imposed on the accused by the trial court. 4. The learned Counsel for the Appellants contended that in the FIR lodged by the father of the deceased or in his earlier statement recorded by the police neither there was mention of any dowry demand made by the Appellants nor of any harassment meted out to his daughter. It was contended that PW2-brother of the deceased made a false statement for the first time on 18.08.1997 i.e. five days after the death of Archana stating that the parents-in-laws of the deceased were raising dowry demand of Rs. 5,00,000/- and also made allegations regarding cruelty and harassment in connection therewith. It was submitted that PW-2 kep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that the accused caused the dowry death. A conjoint reading of Section 113B of the Evidence Act and Section 304B Indian Penal Code 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 Indian Penal Code. 8. In his evidence, PW1-Dr. Hirday Narayan Tripathi, father of the deceased, stated Archana was hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant V.K. Mishra that Archana consumed poison and died. PW-1 stated that his elder son-Santosh Kumar (PW-2) returned from Bombay on 15.08.1997, who also informed him about the demand of Rs. 5,00,000/- by the accused persons from Archana. 10. Evidence of PW-1-complainant is assailed by the Appellants contending that in the complaint lodged by him it is not mentioned that any kind of dowry demand was ever made and that allegation of demand of dowry is flawed as the same was neither mentioned in the FIR nor in his statement recorded by the investigating officer. It was also submitted that the details of payment of dowry was also not made clear by PW-1 either in the FIR or in his statement and evidence in the Court is only an exaggeration and no weight could be attached to the same. 11. Of course, in the FIR, PW-1 had not given the details of the money paid to the accused. But in his complaint PW-1 had categorically stated that the Appellants had been torturing Archana with their cruel behaviour and Archana complained the same to him and that he advised her to compromise with the situation and create a healthy atmosphere. In the FIR, though, there is no specific mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigating officer, the learned Senior Counsel urged and tried to persuade us to look into the statement of PW-1 recorded Under Section 161 Code of Criminal Procedure. 14. Section 161 Code of Criminal Procedure 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 Code of Criminal Procedure can be used at any trial are indicated in Section 162 Code of Criminal Procedure Section 162 Code of Criminal Procedure 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction. 17. Section 145 of the Evidence Act reads as under: 145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. 18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drew the money from the banks three-four months prior to marriage. PW-1 further stated that he withdrew Rs. 1,00,000/- from his G.P.F. account one year before the marriage and deposited the money in his Central Bank Account, D.B.S. College Branch and whenever he needed, he used to withdraw money from his account. In his evidence, PW-1 has clearly narrated about the details of money paid to the Appellants i.e. payment of amount of Rs. 11,000/- and Rs. 15,000/- was given on the occasion of 'Tika' ceremony', Rs. 50,000/- each paid on three different dates; fixed deposit amount of Rs. 63,000/- left in the account of Archana which was matured was also withdrawn and paid to the Appellants on 11.07.1997. Evidence of PW-1 regarding making payments to the Appellants is cogent and consistent and is amply strengthened by the bank statements. Non-mention of details of money paid to the Appellants and the demand of dowry and cruelty and harassment meted out to Archana in the statement of PW-1 does not affect the credibility of PW-1. As rightly observed by the High Court, it cannot be expected from a father to narrate everything when he himself was in agony due to death of his own da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at PW-2 could not have met his sister on 09.08.1997 nor he visited Archana's matrimonial house on 10.08.1997 as he was granted leave only from 11.08.1997 to 14.08.1997 and his presence in Dehradun on 09.08.1997 and 10.08.1997 is highly doubtful. Evidence of PW-2 is further assailed contending that his parental house situated at Dehradun, it is quite unnatural that PW-2 claims to have stayed in a hotel at Dehradun and strangely after the alleged demand of Rs. 5,00,000/-, strangely PW-2 did not choose to contact his parents and informed them about the alleged demand even though PW-2 stayed in hotel at Dehradun till 11.08.1997. It was submitted that PW-2 had not taken written permission from his department to leave the project station at Tehri prior to 11.08.1997 and stay of PW-2 in hotel which is only 4-5 kms. away from his parental house raises serious doubt about his testimony. It was further submitted that statement of PW-2 that there was a dowry demand of Rs. 5,00,000/- was recorded only on 18.08.1997 whereas PW-2 returned to Dehradun even on 15.08.1997. 23. Contentions urged assailing credibility of PW-2 do not merit acceptance. PW-2 in his evidence had clearly stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d about death of Archana and on the next day he returned to Delhi by air and from Delhi he reached Dehradun by taxi. In his evidence PW-2 stated that the police being busy in the programme of Ms. Mayawati, the then Chief Minister of Uttar Pradesh on 17.08.1997, the police did not examine and record his statement and it was only on 18.08.1997 his statement was recorded by the investigating officer. Considering the evidence of PW-2, it cannot be said that the prosecution was deliberately taking time with a view to concoct a false case and decide about the shape to be given to the case. It is pertinent to point out that on the delayed examination of PW-2, no question was put to the investigating officer (PW-14) by the defence. Had such question been put to PW-14, he would have certainly explained the reason for not examining PW-2 from 15.08.1997 to 17.08.1997. Having not done so, the Appellants are not right in contending that there was delay in recording the statement of PW-2. 25. It cannot be held as a rule of universal application that the testimony of a witness becomes unreliable merely because there is delay in examination of a particular witness. In Sunil Kumar and Anr. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in anyway advance the case of the Appellants. 28. Defence placed much reliance upon three documents: (i) the suicide note written by the deceased; (ii) inland letter allegedly found in the trunk and lapses in the investigation and (iii) the letter said to have been written by the deceased victim to her brother-in-law. The Appellants vehemently contended that PW-14-investigating officer failed to carry out fair investigation regarding the above three documents and submitted that those three documents become more vital on account of belated and self-contradictory evidence with regard to demand of dowry. 29. Mr. Mukesh Giri, learned Addl. Advocate General appearing for the State, and Mr. Ratnakar Dash, learned Senior Counsel appearing for the informant submitted that the Appellants have fabricated three letters probably on legal advice and produced the same at a belated stage while making application for bail and the Appellants have not taken any steps to prove the genuineness of the documents and rightly those documents were rejected by the trial court as well as by the High Court. 30. So far as the suicide note is concerned, Archana is said to have stated that sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nland letter Kha7/1. Contending that investigating officer made no efforts to conduct an impartial investigation, the learned Senior Counsel submitted that the investigating officer made no efforts to conduct impartial investigation which coupled with the embellishments in the prosecution case regarding the demand of dowry raise serious doubts arise about the prosecution case. Learned Senior Counsel further submitted that there is a serious lapse on the part of the investigating officer in ascertaining the truth which entitles the accused to urge the Court to draw an adverse inference against the prosecution and investigation Under Section 114(g) of the Evidence Act and placed reliance upon the judgments of this Court in Tomaso Bruno and Anr. v. State of U.P. (2015) 1 SCALE 498 and Mussauddin Ahmed v. 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 v. K. Yarappa Reddy (1999) 8 SCC 715, wherein this Court held as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssibility of such an inland letter being fabricated to create evidence to make a possible defence cannot be ruled out and rightly the courts below recorded concurrent findings rejecting the said letter. 34. Deceased-Archana was an educated girl. If really she was in love with a boy, she could have married him even against the wishes of her parents. As to the genuineness of the inland letter, as pointed out by the trial court, it is difficult to believe that deceased Archana had preserved the same so that it may reach the hands of her husband and her in-laws. Considering the defence plea regarding the inland letter, the trial court rightly observed that it is natural that a sensible lady after marriage would not have kept it so safely. 35. Insofar as the letter allegedly written by the deceased to Rahul's brother-in-law, like two other documents, this letter was also not recovered during investigation but produced by the accused along with the bail application. Having written such a letter to her brother-in-law, it is strange that without posting the same, the deceased would have kept the letter in the suitcase. When confronted with the letter, PW-1 denied it to be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 Indian Penal Code is based upon proper appreciation of evidence and convincing reasons. The courts below rightly convicted the Appellants Under Sections 304B and 498A Indian Penal Code 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 Indian Penal Code, the punishment is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 304B Indian Penal Code thus prescribes statutory minimum of seven years. In Kulwant Singh and Ors. v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
