V. K. MISHRA & Anr. v. STATE OF UTIARAKHAND & Anr.

victim was subjected to cruelty or harassment. complaint, PW-1 had cat~gc; irically stated that the appellants had been torturing his daughter with their cruel behaviour and she had complained the same to him and that he advised her to compromise with the situation and create a healthy atmosphere. In. the FIR, B though, there is no specific mention about the demand of dowry, however, cruelty and torture alleged in the FIR could have been only in connection with demand of money or jewels. It was not the case of ti. 0 defence that the alleged cruelty could only be ti. .. matrimonial C skirmishes due to normal wear and tear of the matrimonial house. The 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. FIR' is not meant to be an encyclopedia nor is it expected to contain all the details of the prosecution case. Complaint was lodged within few hours after the tragic event. Death of a daughter E within few days of the marriage, the effect on tire 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 F occurred to PW-1 to narra!~. all the details of payment of money and the dowry harassment meted out to his daughter. Unless there are i!ldications of fabrication, prosecution version cannot be doubted, merely. on the ground that FIR does not contain the details. [Paras 7, G 11, 12] [12-C-D; 14-E-H; 15-A-D] 0

#2. 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 H 4 SUPREME COURT REPORTS [2015] 8 S.C.R. 0 A 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. bars use of B statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the c 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 locked 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 E contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into F 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. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of G 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, H V. K. MISHRA&ANR. v. STATE OF UTTARAKHAND & ANR. 5 but it is yet to be proved. Thereafter when investigating A officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will th·en be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having B 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 C 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. [Paras 14to 16, 18] [16-A-B; 17-C, F-H; 18-C-H; 19-A-B] 0

#3. In the case at hand, PW-1 was not confronted with his statementrecorded 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 E the investigating officer. When neither PW-1 nor the investigating officer were confronted with the statement and questioned about it, PW-1 's statement rece>rded under Section 161 Cr.P.C~cannot be looked into for any purpose much less to discredit the testimony of PW-1 F and the· prosecution version. Evidence of PW-1 regarding making payments to the appellants is cogent and consistent and is amply strengthened by the bank stat~ments. Non-mention of details of money paid to the appellants and the demand of dowry and cruelty and harassment meted out to the deceased in the statement of PW-1 does not affect the credibility of PW-1. By perusal of evidence of brother of the deceased (PW-2), it is seen that he remained consistent throughout his H G 6 SUPREME COURT REPORTS (2015) 8 S.C.R. A cross-examination and nothing substantial was elicited to discredit his version. [Paras 19, 20, 23] (19-8-D, G-H; 20-A; 22-E]

#4. PW-6, tenant-neighbour of the accused, has B stated that he has never heard any shouting, screaming from the house of the appellants and the couple was In a case where demand of dowry is living happily. alleged such demands are confined within the four walls of the house and known only to the members of both c sides of the family. In such cases, independent and direct evidence with regard to the occurrences is ordinarily not available. Evidence of PW-6, therefore, does not in anyway advance the case of the appellants. (Para 27] . (24-D-G] D

#5. So far as the suicide note is concerned, the deceased is said to have stated that she is taking the step "suicide" because her mental condition is not good and that nobody should be held responsible for her act. E The suicide note was not discovered during investigation but it was later produced by the appellants. When PW-1 (father) was confronted with the suicide note, he denied it to be in the hand writing of the deceased. The appellants did not take steps to prove the suicide F note to be in the hand writing.of the deceased. Another document relied upon by the appellants was an inland letter purportedly written by a person with whom the deceased was said to have had love affair. Inland letter was not discovered during investigation but the same G was produced by the accused in a bail application filed on 29.08.1997. 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. [Paras 30, 31, 33] (25-D-F, G; 27-G-H; 28-E] H V. K. MISHRA &ANR. v. STATE OF UTTARAKHAND & ANR. 7

#6. Prosecution has established beyond reasonable A doubts that 'soon before her death' the deceased 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 1138 of the Evidence B Act. Concurrent findings of the courts below convicting the appellants under Section 3048 IPC was based upon proper appreciation of evidence and convincing reasons. For the offence under Section 3048 IPC, the punishment is imprisonment for a term which shall not C be less than seven years but which may extend to imprisonment for life. Section 3048 IPC thus prescribes statutory minimum of seven years. As per prison records, the accused-RM is in custody for more than five years D 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 RM is in custody for more than five years, interest of justice would be met if life imprisonment awarded to him is reduced to E imprisonment for a period of ten years. Appellants VKM and NM, each of them have undergone imprisonment of more than one year. They are aged about seventy and sixty four years and are said to be suffering from various ailments. Considering their age and ailments and facts F and circumstances of the case, life imprisonment imposed on them is also reduced to imprisonment of seven years each. [Paras 39, 40, 41] [30-D-F, G; 31-B-E] Sunil Kumar & Anr. vs. State of- Rajasthan (2005) 9 SCC 283: 2005 (1 ) SCR 612; Sher Singh@ Partapa vs. State of G Haryana (2015) 1 SCR 29; Ramakant Mishra@ Lalu etc. vs. State of U.P 2015 (3) SCALE 186; Ku/want Singh & Ors. vs. State of Punjab (2013) 4 SCC 177: 2013 (5) SCR 604 - relied on. H 8 SUPREME COURT REPORTS [2015] 8 S.C.R.