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TMI Blog2015 (7) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... n Tripathi, father of the deceased, had given a sum of Rs. 50,000/- each on three occasions and Rs. 63,200/- on 11.07.1997 and also gifted jewellery worth Rs. 2,00,000/- to Archana. Archana, after return from honeymoon, visited her parents house and complained several times to her father, mother and brother about the continuous harassment and torture meted out to Archana by her in-laws and husband and that they used to abuse her in connection with demand of dowry. Between 09.08.1997 to 10.08.1997, Archana visited her parents house. On 09.08.1997, Archana informed her brother-Santosh (PW-2) about the demand of Rs. 5,00,000/- by the Appellants and PW-2 told Archana that he will talk to the Appellants. On 10.08.1997, Appellant Rahul came to Archana's house and had taken back Archana to his house. On 10.08.1997, PW2-Santosh Kumar visited the house of the accused and tried to pacify the accused regarding their demand of Rs. 5,00,000/-; but the accused persisted in their demand. On 13.08.1997, PW1-Dr. Hirday Narayan Tripathi visited various institutions to find job for Archana. On the same day, Archana was admitted in the hospital as a suspected case of poisoning and she died due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court erred in placing reliance upon the evidence of PW-1 and PW-2 to record the verdict of conviction. It was contended that entire investigation was flawed as regards the suicide note and the letter written by the deceased to her brother-in-law and no detailed investigation was carried out viz. the inland letter dated 10.08.1997 received by the deceased which according to the Appellants contained threats from a dejected lover and sample of vomitus taken was either changed or tampered. It was vehemently contended that the courts below were not right in recording the conviction based on the evidence of PW-1, PW-2 and PW-3 which were purely hearsay and full of contradictions and thus lacked credibility apart from being clearly an afterthought. 5. Learned Counsel for the Respondents submitted that the prosecution adduced cogent and consistent evidence to prove the dowry demand and that deceased-Archana was highly educated girl and very sensitive who ended her life only due to the Appellants' greed for dowry and the Appellants subjecting her to cruelty and harassment in connection with the demand of dowry. It was submitted that upon proper appraisal of evidence, the trial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Archana on 07.02.1997, demands of dowry started from the side of groom for a motor-cycle, a sum of Rs. 2,00,000/- etc. In his evidence PW-1 stated that amount was given to the accused persons both before marriage and also after marriage-(a) Rs. 50,000/- on 24.02.1997; (b) Rs. 50,000/- on 14.03.1997; (c) Rs. 50,000/- on 05.05.1997 and (d) Rs. 63,200/- on 11.07.1997 and that he raised money by sale of his land and by drawing money from his GPF. PW-1 further stated that the demands were raised for TV, washing machine, dining table, chairs and almirah etc. He has stated that his daughter came after three days of 'pagphera' and she told that the Appellants are treating her cruelly demanding balance amount. PW-1 told his daughter that as he has no money, he will be paying them Rs. 10,000/- from his salary. Archana asked her father to shut the mouth of the Appellants by throwing money on their face by withdrawing the amount from her own account and accordingly they paid Rs. 63,200/- to the Appellants and the Appellants still unsatisfied made demand for money for starting the new business. Deceased-Archana also told her parents over phone that her in-laws were pressurizing her for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Mishra was solemnized only on 28.6.1997 and Archana was yet to settle down in the house of her in-laws. Both the families were almost of same social and economic status. It is not the case of the defence that the alleged cruelty could only be the matrimonial skirmishes due to normal wear and tear of the matrimonial house. As noticed earlier, money was given by PW-1 both prior to marriage and after the marriage on 11.07.1997 also. Viewed in that context, the alleged cruelty and torture could have been only in the context of demand of money or jewellery. 12. FIR is not meant to be an encyclopedia nor is it expected to contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case are stated in the FIR. Complaint was lodged within few hours after the tragic event. PW-1 has lost his young daughter just married before six weeks in unnatural circumstances. Death of a daughter within few days of the marriage, the effect on the mind of the father-PW1 cannot be measured by any yardstick. While lodging the report, PW-1 must have been in great shock and mentally disturbed. Because of death of his young daughter being grief stricken, it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. 15. Section 162 Code of Criminal Procedure bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W-2 has to go to Bombay for treatment of his wife, PW-2 took leave for four days from 11.08.1997 and he went to Dehradun on 07.08.1997. In his evidence, PW-2 stated that on 09.08.1997 his sister Archana came to the parental house and told him that she is continuously tortured by the Appellants and that they are demanding dowry of Rs. 5,00,000/- and asked him not to tell it to the parents as they will not be in a position to arrange such a big amount of Rs. 5,00,000/- and will be worried. PW-2 further stated that in order to settle the matter amicably, on the evening of 10.08.1997 he went to the matrimonial house of his sister where he saw mother-in-law, father-in-law and husband of Archana scolding her for not bringing the amount of Rs. 5,00,000/-. The Appellant-Neelima Mishra (mother-in-law), told PW-2 "...Santosh open your ears and listen if you do not return back immediately after arranging Rs. 5,00,000/-, you keep your sister at your home....". PW-2 deposed that the Appellant V.K. Mishra asked him about the saving details of PW-2 and all other brothers and their father. PW-2 tried to convince them politely and touched their feet but in vain. PW-2 stated that as he had to go to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse from Dehradun bus stand is 4-5 kms. and as he wanted to settle the matter with the in-laws of his sister-Archana about their additional demand of dowry for Rs. 5,00,000/-, he left his home to the hotel with his luggage at 3.00 o'clock perhaps to settle the matter with in-laws of Archana and in order to save time to take the bus on the night of 10.08.1997, PW-2 might have stayed in the hotel at Dehradun. In his evidence, PW-2 clearly stated that he had taken permission to be away from Tehri from 07.08.1997 to 10.08.1997 and that he took leave from 11.08.1997 for three-four days to go to Bombay in connection with his wife's treatment in Bombay. PW-2's evidence that he met Archana at their parental home on 09.08.1997 and that Archana informed him about the demand of Rs. 5,00,000/- and cruelty meted out to her and that he proceeded to the house of the Appellants to settle the dispute amicably is quite natural and inspires confidence. PW-2 acted like a loving brother and probably he did not want to give tension to his old parents and on seeing the urgency of the matter, went to the Appellants' house to convince them. By perusal of evidence of PW-2, it is seen that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introducing a core of witness to falsely support the prosecution case. As such there was no delay in recording the statement of PW-2 and even assuming that there was delay in questioning PW-2, that by itself cannot amount to any infirmity in the prosecution case. 26. PW3-Sharad Kumar Tripathi, another brother of the deceased narrated the incident that took place on 13.08.1997 in the evening at about 3.10 p.m. a phone call was received by him from the Appellant-Rahul Mishra who asked him to reach his home immediately with my father and disconnected the phone. PW-3 stated that he heard voices of scolding and crying someone from background and so he called him and Appellant-Rahul Mishra received the phone and asked him to come immediately with his father and disconnected the phone. When PW-3 called again, Appellant V.K. Mishra came on line, who shouted at PW3 at a very high tone asking him to take his sister and that they will not keep her. When PW-3 reached there, one of the tenants in the Appellants' house told him that white froth was coming out of Archana's mouth and that she was taken to Doon Hospital and PW-3 rushed to the hospital where he came to know that Archana con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (father of Archana) was confronted with the suicide note, PW-1 denied it to be in the hand writing of Archana. Appellants have not taken steps to prove the suicide note to be in the hand writing of Archana. Even assuming the suicide note to be true, the fact remains that the death of Archana was unnatural. The contents of the suicide note does not affect consistent version of PW-1 and PW-2. 31. Another document relied upon by the Appellants is an inland letter dated 10.08.1997 purportedly written by a person with whom Archana is said to have had love affair. According to the Appellants Archana had love affair before her marriage with a boy who after Archana's marriage started blackmailing her to reveal the love affair and the alleged abortion and due to this reason Archana became upset and committed suicide by consuming poison. Paper No. 7 Kha/1 was submitted to the court of sessions during the hearing of bail application of the accused. Learned Senior Counsel for the accused Mr. Luthra and Mr. K.T.S. Tulsi contended that investigating officer had not taken any efforts to investigate about this significant lead which would have knocked the foundation of the complainant's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case.... 33. Inland letter Kha7/1 was not discovered during investigation but the same was produced by the accused in a bail application filed on 29.08.1997. Thereafter on the request made by the accused, investigating officer was directed to investigate upon the same. As noticed earlier, the inland letter was not discovered during the investigation; but brother-in-law of Archana is said to have discovered the inland letter and also the letter allegedly written by Archana to her brother-in-law from the suitcase of deceased-Archana. Brother-in-law who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents produced by the accused in the court, the accused could have taken steps to prove the documents to substantiate their defence. Having not done so, the accused cannot turn round and contend that there were lapses on the part of the investigation which vitally affect the prosecution case. 36. The investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions. 37. In Sher Singh @ Partapa v. State of Haryana (2015) 1 SCR 29, it had been held therein that the use of word 'shown' instead of 'proved' in Section 304B Indian Penal Code 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-in-law was seventy eight years of age and the Supreme Court held impermissibility of reduction of sentence on the ground of sympathy below the statutory minimum. 41. As per prison records, the accused-Rahul Mishra is in custody for more than five years which includes remission. Bearing in mind the facts and circumstances of the case and the occurrence was of the year 1997 and that the accused Rahul Mishra is in custody for more than five years, interest of justice would be met if life imprisonment awarded to him is reduced to imprisonment for a period of ten years. Appellants V.K. Mishra and Neelima Mishra, each of them have undergone imprisonment of more than one year. Appellants No. 1 and 2 are aged about seventy and sixty four years and are said to be suffering from various ailments. Considering their age and ailments and facts and circumstances of the case, life imprisonment imposed on Appellants V.K. Mishra and Neelima Mishra is also reduced to imprisonment of seven years each. 42. In the result while we uphold the conviction of the Appellants Under Section 304B Indian Penal Code and other offences, sentence of life imprisonment imposed on Rahul Mishra is reduced to ten ye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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