HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 42 of 2002 Rahul Mishra and others …..Appellants Versus State of Uttarakhand ….Respondent Mr. J.C. Gupta, Senior Advocate with Mr. Anurag Tomar and Mr. Narendra Bali, Advocates for the appellants. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. Dated: September 26, 2011 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Delivered by Hon.V.K. Bist.J. This criminal appeal is directed against the judgment and order dated 04.02.2002 passed by Additional Sessions Judge (Special Judge, C.B.I. Anti Corruption, Uttarakhand), Dehradun in Sessions Trial No. 204 of 1997 ‘State vs. Rahul Mishra and two others’, whereby the appellants have been convicted and sentenced to undergo rigorous imprisonment for life under Section-304 B I.P.C., three years rigorous imprisonment with fine of ` 2,000/- each and in default of payment of fine further six months imprisonment under Section 498-A I.P.C. and one year rigorous imprisonment with fine of ` 1,000/- each under Section 3/4 of The Dowry Prohibition Act and in default of payment of fine three months rigorous imprisonment. 2. Brief facts of the case are that on 13.08.1997, at 06.45 p.m., a First Information Report was lodged by Dr. Hirday Narayan Tripathi, father of the victim, at Police Station Kotwali, Dehradun. It was alleged in the First Information 2 Report that on 28th June, 1997 marriage of his daughter Archana was solemnized with the accused Rahul Mishra, resident of 10/3 Park Road, Dehradun. On 13.08.1997, his daughter was declared dead in the hospital in suspicious condition. It was stated that soon after marriage of his daughter, she was tortured by her father-in-law V.K. Mishra, mother-in-law Neelima Mishra and husband Rahul Mishra, about which she complained to him. But, he advised his daughter to compromise with the situation and normalize the atmosphere. In the F.I.R., the complainant suspected that due to such cruelty and maltreatment, his daughter finished her life. The crime was investigated and charge sheet was submitted. After submission of charge sheet, case was committed to the Court of Sessions. The trial court framed charges, which were denied by the appellants and they claimed trial. 3. The prosecution, in order to prove its case, examined as many as fourteen witnesses. PW- 1 Dr. Hirday Narayan Tripathi complainant and the father of the victim, PW-2 Santosh Kumar Tripathi, elder brother of the victim and witness of fact, PW-3 Sharad Kumar Tripathi, youngest brother of the victim and witness of fact, PW-4 Dr. S.R.S. Rana, Senior Child Specialist, who conducted autopsy on the dead body of the deceased Archana, PW-5 Dr. Ajay Kumar Vijani, in whose presence inquest report was prepared, PW-6 Vijay Kumar Sharma, who was a tenant of the appellants, in whose 3 presence one container of ‘Beygon Spray’ and one spray pump was taken into custody from the room of the victim, PW-7 Smt. Chandra, an Ayah in Doon Hospital, in whose presence jewellery wore by Archana at the time of her death were removed by the appellants, PW-8 Nirmala Garg, a Staff Nurse of Doon Hospital, in whose presence on 13.08.1997 Smt. Archana was admitted in the hospital by her in-laws, who has stated that the jewellery of Archana was removed by the appellants, PW-9 Dr. H.K. Sharma, Physician, who admitted the victim in Doon Hospital and started her treatment, PW-10 is Constable Govind Singh, who prepared chick report in the Police Station and made necessary entries in the General Diary, PW-11 Constable Surendra Kumar, who took viscera of the deceased to Forensic Science Lab, Arga, PW-12 Sub-Inspector Fakire Lal Verma, who proved inquest report and other related papers, PW-13 Sub-Inspector A.K. Dixit, who is the first investigating officer and conducted investigation for a short period, PW-14 C.O. S.S. Chauhan, the second investigating officer, who submitted charge sheet against the appellants. In defence, appellants got examined DW-1 Chhavi to show that the relations between the deceased and her husband were cordial. This witness stated that on 10.07.1997, Rahul Mishra with his wife stayed in a Hotel Medo, Kausali (H.P.). 4. Oral and documentary evidence was put to the appellants under Section 313 Cr.P.C., in reply to which they alleged that they have been 4 falsely implicated in the crime. They admitted that marriage was solemnized on 28.06.1997 between Archana and Rahul Mishra but they denied all the charges levelled against them. 5. Learned Senior Advocate for the appellants Shri J.C. Gupta submitted that there is no iota of evidence on record to even remotely suggest that any of the appellants administered poison (Aluminum Phosphide) to the deceased. There is also no evidence on record to show that any of the appellants procured the said poison or the same was possessed by any one of them at any point of time. He submitted that before holding a person guilty for dowry death, the ingredients of Section 304-B I.P.C. has to be proved beyond reasonable doubt. Husband or relatives of a deceased shall be deemed to have caused dowry death only when ingredients of Section 304-B I.P.C. are established beyond reasonable doubt. He further submitted that presumption for dowry death under Section 113-B of the Indian Evidence Act can also be drawn only when ingredients of Section 304- B I.P.C. are established beyond reasonable doubt. Relying on AIR 2001 SC 2828 “Satvir Singh Vs. State of Punjab” he argued that initial burden of proving the aforesaid ingredients, still rests on the prosecution and the prosecution cannot escape from the burden of proof. Such burden does not shift on the accused unless the prosecution has succeded in establishing the said ingredients. In support of this argument, he relied on the 5 judgments rendered in (2008) 1 SCC 202 “Biswajit Halder @ Babu Halder and others Vs. State of Bengal” and (2010) 9 SCC 73 “Durga Prasad & another Vs. State of Madhya Pradesh”. He argued that in view of these case law, if the evidence pertaining to cruelty or harassment and/or demand of dowry or vise-versa is lacking or not worthy of acceptance, presumption of ‘dowry death’ with the aid of 113-B of the Indian Evidence Act, cannot be drawn. 6. To substantiate his argument, the learned Senior Counsel for the appellants submitted that there is not even a whisper in the F.I.R. of any kind of demand of dowry. The allegation of demand of dowry is conspicuous by its absence in the F.I.R. PW-1 father of the deceased is the author of the F.I.R. and he himself wrote the same in clear terms without there being any ambiguity. He submitted that as per the F.I.R., deceased made complaint to her father but there is no mention at all that she ever complained of being harassed by appellants for or in connection with any demand of dowry. In his cross-examination, the PW-1 categorically stated that she never made any complaint to him. He also submitted that PW-1 in his statement, recorded under Section 161 Cr.P.C. by the First I.O., did not utter a single word about any dowry demand and the allegation of ‘Pratarna’ (torture) made by him was not explained by him that the same was about harassment for dowry demand. The vital and important omissions in the F.I.R. and in the 6 statement recorded under Section 161 Cr.P.C. have great significance and cannot be left out from consideration in order to test the truthfulness the statement of PW-1, as they amounts to contradictions. Learned Senior Counsel for the appellants contended that by no stretch of imagination, the word ‘Pratarna’ (torture) could be inferred as harassment for dowry demand. Learned Senior Counsel further said that had there been any demand of dowry as alleged, it is not digestible that she would not have told the same to her father, particularly when she was a highly educated woman and therefore statement given by PW-1 is an after thought, in order to overcome the inherent weakness of the prosecution case with regard to the most essential ingredient of Section 304-B I.P.C. i.e. demand of dowry. 7. Learned Senior Advocate for the appellants further submitted that the evidence of PW-2 is also not trustworthy and reliable for the reasons that according to him on 09.08.1997, he had come to his home at Dehradun from Tehri, where he was posted as Geologist in the Tehri Dam Project. But, his cross-examination reveals that he had not taken written permission for leaving his head quarters. Secondly, as per his statement, his sister Archana told him, in the evening of 09.08.1997 at her matrimonial home, that accused persons were making demand of ` 5 Lakhs and were harassing her. It is further stated by him that on the next day Rahul Mishra came there and took 7 Archana with him in a huff without taking any food. Seeing seriousness of the matter, he changed his programme and did not go to Delhi. At around 4 O’ clock, he reached the residence of appellants, where appellants demanded ` 5 Lakhs and also told to take his sister back. Learned Senior Counsel submitted that inspite of all these things, surprisingly, the brother of the deceased took no action in this matter. He neither informed his parents nor other brothers, not even the younger brother (PW-3), who was undisputedly residing in Dehradun. According to learned Senior Counsel, it does not sound to reason that being posted on a Senior Post like Geologist and as per his own admission as the issue was urgent, he cancelled his programme of going to Delhi in the night of 10.08.1997, he would have kept silence and would not take any steps though he remained at Dehradun throughout the night of 10.08.1997 and upto 10:00 p.m. on 11.08.1997. Had there been any grain of truth in his statement, he would not have behaved in a manner, which is most inconsistent with the normal human conduct and behavior. That apart, it is noteworthy that all the facts stated by him, which according to him happened at the residence of accused persons, he did not tell those facts to the Investigating Officer PW-14. It is not easy to digest that even on 18.08.1997 after coming to know of the death of his sister on 14.08.1997, he would not tell all these facts to the I.O. Learned Senior Counsel then submitted that these omissions also are very vital and amount to contradiction, 8 which cannot be brushed aside, while testing his evidence given in the Court. He further submitted that the cross-examination of PW-2 reveals that all these facts, which he stated in the trial court, he did not mention in his statement under 161 Cr.P.C. recorded by the second I.O. PW-14. It was thus, not be safe and prudent to act upon this belated and cooked up story of this solitary witness, which does not get corroboration from any kind of material whatsoever. The learned Senior Counsel submitted that it has been held in the case of “Amar Singh Vs. State of Rajasthan” AIR 2010 SC 3391, that a prosecution witness, who merely uses the word ‘harassed’ or ‘tortured’ and does not describe the exact conduct of the accused, which according to him amounted to harassment or tortured, may not be believed by the court in cases u/s 498-A and 304-B I.P.C. He further said that in “Kansraj Vs. State of Punjab” AIR 2000 SC 234, it was observed by the Apex Court that a tendency has developed for roping in all relations of the in-laws of the deceased, in the matter of dowry death which, if not discouraged is likely to effect the case of the prosecution even against the real culprits. In the absence of such positive evidence, conviction under Section 304-B cannot be sustained. After citing the above judgments of the Hon’ble Supreme Court, the learned Senior Counsel submitted that in the present case, right from the beginning, prosecution came with a positive case that the deceased committed suicide on account of harassment and torture caused by accused persons, but neither in 9 the F.I.R. nor in the statement recorded under 161 Cr.P.C. nor in the statements given in the Court, no specific accusation is made as to what kind of harassment the accused persons exerted. 8. Raising doubt on the Forensic Lab report, the learned Senior Counsel submitted that it may not be out of place to mention that death of Smt. Archana as per charge and prosecution allegation occurred due to consumption of poison (Aluminum Phosphide) as per the report of Forensic Lab. According to PW-9, when he treated Smt. Archana in Doon Hospital, as a suspected case of poisoning, he preserved gastric lavage in a sealed container. PW-4 the doctor, who conducted post mortem examination, stated that since cause of death could not be ascertained, he preserved viscera of deceased Archana in a sealed container. According to the I.O., both the sealed container of vomitus and viscera were sent to Forensic Lab in one sealed bundle. However, the report of Forensic Lab clearly mentions that on opening the sealed bundle, only one sealed container of viscera was found and not the other sealed container containing vomitus. Learned Senior Counsel submitted that this creates a heavy shadow of doubt and the possibility cannot be ruled out that the packets were tampered with. Also, referring cross-examination of Dr. H.K. Sharma PW-9 in which he has stated that possibility of consumption of Aluminum Phosphide is extremely low, the learned Senior Counsel submitted that having regard to the fact that there 10 was every possibility of the bundle sent to Forensic Science Laboratory (FSL) being tampered with and to the opinion expressed by Dr. Sharma PW-9, it cannot be said with any amount of certainty that the cause of death of Archana was on account of consumption of Aluminum Phosphide. 9. Learned Senior Advocate then submitted that there is yet another glaring circumstance, which goes to the root of the case. While filing their bail application before the Sessions Judge, the accused persons had filed suicide note in the Court, which according to them was written by the deceased in her own handwriting under her signatures. The Sessions Judge sent the said suicide note to the investigating agency to verify the veracity of the said note. It has come in the statement of PW-14 that the said suicide note was shown to PW-1, PW-2 and PW-3 and at that time, they stated that the signatures seemed to be that of Archana, but they were not sure. However, when during trial, the witnesses were confronted with the said note, they said that the suicide note did not bear signature of the deceased. It is also in the evidence of I.O. that he asked the witnesses to provide specimen signature of the deceased, but they did not do so. It may be pointed out here that during investigation, it had come to the knowledge of the I.O. that the deceased was having her own bank account and she was M.S.C. B.Ed thus, the I.O. could have easily found her specimen signature from those places, so as to get them compared by a 11 hand writing expert. The investigating officer thus failed in his duty to assist the court for arriving at a just decision. He contended that when the prosecution deliberately failed to get the signature of the deceased compared, an adverse inference should be drawn against the prosecution particularly in view of the earlier statement of the witnesses made under 161 Cr.P.C. that the signature looked like that of the deceased. 10. Learned Senior Advocate lastly submitted that since there is no reliable evidence of harassment and demand of dowry as defined under the Dowry Prohibition Act even charges no.2 and 3 are not established, the appellants are entitled to be acquitted thereunder also. 11. We have considered the arguments of learned Senior Advocate for the appellants. In the case of ‘dowry death’, the prosecution has to prove the essential ingredients as to whether the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, whether such death has been caused within seven years of her marriage, whether soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband and whether such cruelty or harassment was for, or in connection with any demand of dowry. As per the Section 113-B of The Indian Evidence Act, 1872, if the above ingredients are established beyond doubt, 12 offence of ‘dowry death’ shall be presumed to have been committed. 12. PW-9 Dr. H.K. Sharma, Physician, Doon Hospital has stated that on 13.08.1997 he was on duty when Smt. Archana was admitted in the hospital at 3:45 p.m. and it was informed that she had consumed poisonous substance. General condition of the patient was critical. She was unconscious. In the course of treatment, she was administered medicine. But, she succumbed on 13.08.1997 at 5:25 p.m. PW-4 Dr. S.R.S. Rana, Senior Child Specialist, stated that at the time of postmortem, the dead body of Smt. Archana was in a sealed condition; rigor mortis was present in the lower limbs; one blue mark was found present at the waist; eyes were half opened; froth was coming out of the nostrils and mouth; face was bluish and no anti mortem injury was seen on the dead body. On internal examination, the brain membranes and brain was found congested; both lungs were congested; blood was present in right chamber and left was empty; semi digested food was found in the small intestine; gases and faecal matter was found in large intestine; gall bladder was congested and half filled; spleen and kidneys were congested; bladder was filled with urine; 300 ml. semi digested found, brownish in colour, was present in the stomach; inner portion of stomach was congested; viscera, which integrated pieces of stomach, gall bladder, small intestine, kidney, liver and spleen was preserved in a solution. PW-4 stated that cause 13 of death could not be ascertained, hence viscera was preserved for chemical examination. He also stated that congestion in lungs, spleen and kidney could be due to poison. In the Forensic Science Lab. report, Aluminium Phosphide poison was found in the viscera of the deceased. Thus, it is established on record that death of the deceased was not natural but such death occurred otherwise than under normal circumstances. 13. We have examined (Ext.A-19) the report of Scientific Officer, Forensic Science Lab, Agra dated 19.01.1998. According to said report, after scientific analysis, Aluminum Phosphide Poison was found in the viscera of Smt. Archana. Report (Ext.A- 20) of the said Lab, discloses that the brown coloured liquid, contained in a plastic spray pump, was detected as Beygon insecticide poison, in the course of scientific analysis. Argument of learned counsel for the appellants that there is every possibility that bundle sent to FSL were tempered with and cause of death of victim was not on account of consumption of Aluminum Phosphide is without basis. We find no reason to disbelieve the forensic report. Thus, it is proved that death of the victim occurred due to Aluminum Phosphide poison, which was given to her or taken by her in the house of appellants. 14. As far as arguments of learned Senior Advocate that the prosecution failed to get the signature of deceased compared is concerned, we 14 are of the view that appellants cannot be permitted to argue this point in the appeal, when they themselves have not moved any application before the trial court for summoning handwriting expert for comparing the signature of the deceased. 15. Now, we take the testimony of PW-1 Dr. Hirday Narayan, who has asserted that his daughter Archana was M.Sc./B.Ed., whose marriage was solemnized with the accused Rahul Mishra on 28.06.1997. He stated that at the time of engagement, there was no discussion about the dowry, but after the engagement, demand of dowry started. The first was of a Motorcycle for which he gave a sum of ` 50,000/- to the appellants. This witness has stated that he was called upon by the appellants at their home, where they demanded ` 2 lacs from him for which his wife agreed. He stated that before the marriage, he gave ` 1,26,000/-, thereafter, the appellants demanded T.V., washing machine, dining table, chairs, almirah etc. Three days after the marriage, his daughter came to her matrimonial house with her husband, but her husband returned back, leaving her daughter. Her daughter told that the appellants were demanding balance amount and were telling the dowry items as rubbish. She told that her father-in-law V.K. Mishra, mother-in-law Neelima Mishra as well as her husband Rahul Mishra are demanding dowry and are behaving very rudely. She also told that dowry was to be arranged. He told his daughter that he had no money but he shall pay ` 10,000/- 15 monthly from his salary. At this, his daughter asked him to withdraw the money, which was lying in her account and shut the mouth of appellants. She also signed a cheque and gave the same to him. After withdrawing ` 63,200/- from the bank account of her daughter, he, alongwith with his son Sharad Kumar and daughter Archana, went to appellant’s house, where all the appellants were present and handed over the sum to the mother-in-law of her daughter. Thereafter also, his daughter used to telephone him informing that her in-laws are demanding money for opening new business. The maidservant, who used to serve in the house of the appellants, was removed. He further stated that in the last week of July, 1997, the accused V.K. Mishra telephonically demanded handsome money from him for starting new business, which he denied. In the last week of July, they started badly treating his daughter and threatened to throw her belongings on the road. By the end of July, 1997, his daughter got worried and started thinking for job. Two three days before 6th August, 1997 at night, Archana came to her matrimonial house and took with her the notes of Intermediate and B.Sc. for her preparation. Again on 09.08.97 at noon, her husband-accused Rahul came with Archana and left her at her matrimonial home. Accused Rahul came again on 10.08.97 and took Archana with him. Archana was very much worried, but she did not disclose anything. This witness has further stated that on 13.08.1997 he had gone to Central School, where he was told that there was no 16 vacancy. Thereafter, he went to Indian Institute of Petroleum. In the evening, he wanted to inform his daughter Archana about this at her in-laws place. But, before this, he rang his wife, who asked him to reach Doon Hospital immediately, as Archana was serious. At about 5:30-5:45 p.m., he reached at Doon Hospital, and in front of emergency ward, he found the appellants sitting there. When he approached the appellants, accused V.K. Mishra told him that his daughter had consumed poison. Accused Neelima told that Archana has passed away. On his desire to see his daughter, the accused V.K. Mishra took him to the door but after pointing towards dead body, he returned back. His younger son Sharad Tripathi was standing near the dead body, who told that while he had gone to call the doctor, the appellants took away jewellery of Archana. After consulting the doctor when Sharad Tripathi came back, he found accused V.K. Mishra insisting the doctor not to conduct postmortem. This witness proved first information report (Ext.A- 1). This witness has further stated that when his elder son Santosh Kumar, returned on 15th August, 1997 at 7:30-8:00 p.m., his son disclosed that the appellants were demanding a sum of ` 5 lacs from Archana. 16. From reading the statement of PW-1, we find his statement as natural and trustworthy. We do not agree with the submission of Shri J.C. Gupta, Senior Advocate that absence of demand of dowry in the F.I.R. and in the statement recorded 17 under Section 161