RAHUL MISHRA Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) 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 304B I.P.C., three years rigorous imprisonment with fine of Rs. 2,000/ - each and in default of payment of fine further six months imprisonment under Section 498A I.P.C. and one year rigorous imprisonment with fine of Rs. 1,000/ - each under Section 3/4 of The Dowry Prohibition Act and in default of payment of fine three months rigorous imprisonment. 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 Report that on 28th June, 1997 marriage of his daughter Archana was solemnized with the accused Rahul Mishra, resident of 1.0/ 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.

(2.) 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 presence one container of 'Baygon 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, Agra, 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 CO. 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.)

(3.) 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 304B 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 304B I.P.C. are established beyond reasonable doubt. He further submitted that presumption for dowry death under Section 113B of the Indian Evidence Act can also be drawn only when ingredients of Section 304B 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 succeeded in establishing the said ingredients. In support of this argument, he relied on the 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.