Vinay Kumar vs State Of U.P.
2013 Latest Caselaw 3722 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on
 
Judgement delivered on 5.7.2013
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 3507 of 2002
 

 
Petitioner :- Vinay Kumar
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- V.P. Srivastava,B.P.Singh,Birendra Kaushik,D.P.Singh,Lav Srivastava,O.P. Singh,Ravindra Sharma,S.K.Singh,Vinay K. Pandey
 
Respondent Counsel :- D.G.A.,B.P. Singh,S.K. Singh
 

 
CONNECTED WITH
 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 3375 of 2002
 

 
Petitioner :- Harish Chandra & Others
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- V.P. Srivastava
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Dharnidhar Jha, J.

Hon'ble Bharat Bhushan, J.

(Delivered by Justice Bharat Bhushan)

1. The Criminal Appeal 3507 of 2002 filed by appellant Vinay Kumar is directed to be expedited by the Hon'ble Supreme Court vide its order dated 8.2.2013 and the appellant Vinay Kumar was granted interim bail for a period of six weeks. Initially, connected Criminal Appeal No. 3375 of 2002 was filed by two appellants namely Harish Chandra and Ravi Kumar but during the pendency of the criminal appeal, the appellant Harish Chandra has died on 9.11.2005 vide report dated 8.2.2013 of Chief Judicial Magistrate, Allahabad supported with death certificate dated 1.12.2005 certifying the death of appellant Harish Chandra on 9.11.2005 and accordingly, the proceedings against him stand abated and Criminal Appeal No. 3375 of 2002 remained alive against the appellant Ravi Kumar only.

2. The aforesaid appeals are directed against the conviction and sentence dated 14.8.2002 passed by Addl. Sessions Judge, Fast Track Court, Room No. 23, Allahabad in Sessions Trial No. 566 of 2001 whereby the appellants Vinay Kumar and late Harish Chandra were convicted under Sections 498-A,304-B IPC and Section 4 of Dowry Prohibition Act. They were sentenced for two years rigorous imprisonment under section 498-A IPC and fine of Rs. 2000 was also imposed on them with default stipulation. The appellants Vinay Kumar and late Harish Chandra were also sentenced for rigorous life imprisonment under Section 304-B IPC and under Section 4 of the Dowry Prohibition Act. They were sentenced for six months rigorous imprisonment along with fine of Rs. 3000/- with default stipulation. All the sentences were directed to run concurrently. Both of them were acquitted under Section 3 of the Dowry Prohibition Act.

3. Further, the appellant Ravi Kumar was convicted under Section 498-A IPC and Section 4 of the Dowry Prohibition Act and sentenced for two years rigorous imprisonment under Section 498-A IPC along with fine of Rs. 2000/- with default stipulation. He was also sentenced for six months rigorous imprisonment under Section 4 of the Dowry Prohibition Act along with fine of Rs. 3000/- with default stipulation. The sentences were directed to run concurrently. Appellant Ravi Kumar was acquitted under Section 304-B IPC and under Section 3 of Dowry Prohibition Act.

4. Brief facts as per prosecution version are that the complainant Shambhulal Srivastava (P.W.-1) solemnised the marriage of his daughter Anita Srivastava (deceased) with appellant Vinay Kumar on 9.7.2000 and at the time of marriage, Rs. 1.50 lacs were given as dowry to late appellant Harish Chandra with Gold ornaments to the tune of Rs. 60,000/- and other house hold materials. The husband of the deceased Vinay Kumar was serving as 'Steno' in Jai Jyoti School, Reewa, Madhya Pradesh. After few days of the marriage, the appellants asked the deceased Anita Srivastava to obtain Rs. 50,000/- from her father on the pretext of paying the bribe for securing a good job for appellant Vinay Kumar. The deceased Anita Srivastava refused to submit to this demand of the appellants saying that her father had spent considerable amount in her marriage and was unable to arrange more money. Appellants thereafter subjected deceased Anita Srivastava to mental and physical cruelty.

5. In August 2000 when the P.W-1 Shambhu Lal Srivastava met her daughter, she narrated the story of torture and harassment to her father. Her father asked her to manage the things. In September, appellant Vinay Kumar (son-in-law) and his brother Ravi Kumar (jeth) came to the residence of the complainant and stayed there overnight. They demanded Rs. 50,000/- from him. The complainant pleaded his inability. On this appellant Vinay Kumar menacingly told him that he was taking deceased Anita Srivastava to Reewa. He also threatened the complainant of serious consequences.

6. Deceased and her husband Vinay Kumar went to Reewa where they started living as tenants in the house of one Dharmendra Srivastava. Just prior to 'Makar Sankranti' deceased Anita Srivastava rang-up his father on a telephone no. 22740 and requested him to arrange the money to fulfil the demand of the appellants. Appellant Vinay Kumar also asked the complainant for this money but when the complainant showed his inability to arrange the money the appellant angrily put down the cradle of the telephone.

7. On 31.1.2001 just two days prior to the fateful incident when the complainant rang-up his daughter on telephone no. 54205 installed at the neighbouring house at Reewa, the deceased tearfully whispered that the appellants including his brother-in-law (jeth) Ravi Kumar and her father-in-law late Harish Chandra Srivastava were present at Reewa. She intuitively felt danger to her life and expressed those fears to her father on telephone. In desperation, she requested her father to visit Reewa. The complainant showed his inability to visit Reewa because he was sick but promised her to visit Reewa as soon as he regained his health.

8. Unfortunately the complainant could not visit his daughter owing to his ill-health. Just two days after this telephonic conversation on 2.2.2001 at about 9.30 p.m., some stranger rang-up the complainant on telephone no. 22740 informing him that his daughter has been killed on non-fulfilment of dowry demand and that the dead body of the deceased was being carried to Allahabad in a Jeep. Distraught parents and their elder son-in-law Sri Prem Kamal Srivastava with his wife Geeta Devi and some neighbours rushed to Allahabad immediately. They reached Allahabad in the intervening night of 2.2.2001 and 3.2.2001 and found that the corpse of deceased was lying in an inhuman condition in Jeep No. M.D.P. 2995 and no body was present there. Appellants were inside the house. The neighbours alluded that the complainant has lost his daughter for not acceding to the demand of Rs. 50,000/-.

9. The FIR (Ex-Ka-3) of the incident was lodged by complainant Shambhu Lal Srivastava (P.W.-1) at P.S. Atarsuiya, District Allahabad at about 12.10 on 3.2.2001. The investigation ensued. The post-mortem was conducted and on completion of the investigation a charge sheet (Ex-Ka-13) under Section 498-A, 304 B IPC was submitted against the present appellants. Trial Judge added Section 3/4 of Dowry Prohibition Act in the charges framed against all appellants.

10. During course of trial, as many as seven witnesses were produced by the prosecution namely Shambhu Lal Srivastava (P.W.1), Dr. S.N.U.Ahmad, (P.W.-2), Head Constable Daya Sagar Singh (P.W.-3), S.D.M., Soraon Ram Chandra (P.W.-4), Constable Ram Chandra Ram (P.W.-5), Smt Urmila Srivastava (P.W.-6) and Ganga Nath Tripathi, Addl Superintendent of Police, the Investigating Officer (P.W.-7).

11. The appellants abjured all the allegations against them in their statement under Section 313 Cr.P.C. and thereafter as many as five witnesses were produced by the defence namely P.K. Singh, (D.W.-1), Rampal (D.W.-2), Sanjay Yadav (D.W.-3), Manoj Srivastava (D.W.-4) and V.P.Singh (D.W.-5).

12. Learned Trial Court after analysing all the evidences pronounced its judgement of conviction on 14.8.2002 and sentenced all the appellants as aforesaid. Learned trial court also acquitted one of the appellant Ravi Kumar, under Section 304-B IPC giving him the benefit of doubt. All appellants were acquitted under Section 3 of the Dowry Prohibition Act.

13. Heard learned counsel for the appellants, learned AGA and have perused the material on record.

14. It is pertinent to point out that the appellant Vinay Kumar Srivastava submitted a written statement of defence as contemplated under Section 233(2) Cr.P.C. which provides that if the accused puts in any written statement, the Judge shall file it with the record. This written statement also disclosed certain facts while denying any demand of dowry and torture. In the written statement, appellant Vinay Kumar narrated that on 2.2.2001 when he reached his residence after closure of the office he found that the channel gate of his house was closed. He called his wife to open the door but it was not opened. He obtained the second key of the channel gate from the landlord of the house and opened it. The door of his room was not locked from inside though it was closed. He opened the door and found that his wife had committed suicide. He immediately took his wife at Reewa Medical College where the doctor declared her dead and returned the dead body of the deceased. He immediately rang-up his house at Allahabad, relations at Jaunpur and family members of deceased Anita at Pratapgarh. The father of the deceased asked him to bring the dead body to Allahabad. Thereafter he took the corpse of the deceased Anita to Allahabad in a rented Jeep where family members were present. Subsequently on the instigation of some relations his father-in-law lodged a false and fabricated FIR. This written statement also talks of a suicide note allegedly written by deceased Anita. Written statement also mentions that they found this suicide note on 2.9.2001 when they were vacating the house at Reewa. This alleged suicide note absolving the husband and other family members was annexed with the written statement. However, this suicide note was not formally proved during trial. Prosecution and family members of the deceased Anita declined to accept that this suicide note was actually written by deceased. Infact the father of deceased P.W.-1 Shambhu Lal Srivastava has flatly denied that this suicide note is in the handwriting of deceased Anita Srivastava. The written submission filed by appellant Vinay Kumar Srivastava is extracted hereunder:-

c;ku rgjhjh vfHk;qDr fou; dqekj JhokLro

esjh lknh Jherh vuhrk JhokLro ds lkFk galh [kq'kh ds ekgkSy esa gqbZ FkhA esjs o esjs ?kj okyks ds }kjk dHkh Hkh fdlh izdkj dh ngst dh ;k :i;ksa dh ekWx ugh dh x;h Fkh ;g dguk fcYdqy vlR; gS fd esjh ukSdjh ds fy;s 50][email protected]& :i;s dh ekWx dh tk jgh FkhA eSa viuh iRuh ds lkFk ,d fdjk;s ds edku esa jhok ¼e-iz-½ esa jgrk Fkk] esjh iRuh xHkZorh gksus ds i'pkr ls dqN ekufld ruko esa vDlj jgk djrh Fkh] mldk bykt Hkh eSa le;&2 ij djokrk jgk] bykt ls lEcfU/kr ipsZ vkt eSa nkf[ky dj jgk gWwA jhaok esa esa e; T;ksafr Ldwy (CBSC Board) ts-ih uxj esa LVsuksxzkQj ds in ij dk;Zjr Fkk] QaM oxSjg dVus ds i'pkr eq>s yxHkx [email protected]& ekfld osru izkIr gksrk FkkA fnukad 2-2-2001 dks vkfQl ls NqV~Vh gksus ds i'pkr eSa ekdsZfVax djrs gq;s tSls gh vius ?kj igqWpk rks ns[kk fd ckgj okyk pSusy tks fd ges'kk dh rjg can gSA vkokt nsus ij Hkh ugh [kqyk ftldh ,d pkHkh esjs ikl ,oa nwljh pkHkh edku ekfyd ds ikl jgrh Fkh] ekWxdj [kksyk x;kA rks dejs dk njoktk vUnj ls fHkM+k gqvk FkkA tc /kDdk nsdj vUnj x;k rks ns[kk fd esjh iRuh dejs esa vkRegR;k dj yh gSA eSus rqjUr 'kksj epk;k vkSj diM+k dkVdj mls uhps mrkjk] mrkjrs le; ?kcjkgV esa oks NwV Hkh x;h FkhA bl vk'kk ij dh lk;n oks vHkh Hkh cp tk;] rqjUr jhok esfMdy dkyst ysdj Hkkxk] tgkW mls MkDVjksa us e`r ?kksf"kr dj fn;k] vkSj 'ko okil dj fn;kA fQj eSa rqjUr bykgkckn] tkSuiqj o vius llqjky izrkix<+ VsyhQksu }kjk lwpuk nh rks 'kEHkwyky us dgk fd csVk rqe 'ko dks ysdj bykgkckn vk tkvks] eSa Hkh ogh igqWp jgk gWwA fQj eSus ,d thi fdjk;s dh ysdj] viuh iRuh dk 'ko ysdj bykgkckn jkr esa gh vk x;kA ogkW ij esjs ?kj okys o llqjky okys feys] nwljs fnu gekjs Lolqj dks dqN fjLrsnkjku ds vkus ds ckn rwy nsuk lq: fd;kA vkSj ckn esa iqfyl okyks ls feydj >wBh fjiksVZ fy[kok nhA esjh iRuh ejus ds iwoZ ,d Sucidal Note Hkh fy[kk FkkA ftldh tkudkjh esjs ?kj okyks dks rc gqbZ tc os yksx fnukad 2-9-2001 dks jhaok okys vkokl ls lkjk leku ysdj vk;s eqdnesa esa nkf[ky&

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15.	During the course of arguments some doubts were raised regarding the admissibility of this written statement. It would be proper to quote Section 233 Cr.P.C., which reads as under:-
 
233. Entering upon defence. (1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. 
 
(2) If the accused puts in any written statement, the Judge shall file it with the record. 
 

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.

16. Thus, Section 233 (2) Cr.P.C. gives the accused person a right to submit a written statement. Hon'ble Apex Court in the case of Harbhajan Singh Vs State of Punjab 1966, SC 97 has discussed the scope of corresponding section 256(2) of old Criminal Procedure Code in following terms:-

"Indeed, Section 256(2)of the Cr. P.C., provides that if an accused person puts in a written statement, the magistrate shall file it with the record. If the written statement is filed after a long delay and contains pleas which can otherwise be legitimately regarded as matters of after-thought, that no doubt would affect the value of the pleas taken in the written statement. But we do not think that it would be possible to lay down a general rule that the written statement filed by an accused person should not receive the attention of the court because it is likely to have been influenced by legal advice. In our opinion, such a distrust of legal advice would be entirely unjustified."

17. Considering the provision of Section 233(2) Cr.P.C. and the guidelines given by Hon'ble Apex Court in Harbhajan Singh (Supra) it is clear that such statement cannot be excluded from consideration completely.

18. Similarly, it would be appropriate to discuss the scope of Section 304-B IPC before embarking to discuss and analyse the evidence on record. Section 304-B IPC reads as under:-

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation.-For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extent to imprisonment for life."

19. Thus, Section 304-B IPC provides for a statutory compulsion merely on the establishment of two conditions that (i) death of a wife should have been occurred otherwise than under normal circumstances within seven years of her marriage; (ii) soon before her death, she should have been subjected to cruelty or harassment by the accused in connection with demand of dowry.

20. If these two factual positions are established then, the court has to presume that the accused has committed dowry death. If any accused wants to escape from the said clutches the burden is on him to disprove it. If he fails to rebut the presumption, the court is bound to act on it.

21. Section 304-B IPC is coupled with the Section 113 B of the Indian Evidence Act. Section 113-B of the Indian Evidence Act reads as under:-

"113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation.-For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)."

22. Section 113B of the Indian Evidence Act, 1872 also provides that once it is shown that soon before her death a woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court "shall presume" that such person had caused the dowry death. The expression "shall presume" has been defined in Section 4 of the Indian Evidence Act, 1872, relevant part of which is extracted here in below:

"'Shall presume'.- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."

23. Thus, Section 113B read with Section 4 of the Indian Evidence Act, 1872 would mean that unless and until it is proved otherwise, the Court shall hold that a person has caused dowry death of a woman if it is established before the Court that soon before her death such woman was subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry. Section 3 of the Indian Evidence Act, 1872 states that unless a contrary intention appears from the context, the word "disproved" would mean a fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exit.

24. It is, therefore, evident that irrespective of the fact that whether the accused has any direct connection with the death or not, he shall be presumed to commit dowry death provided the other requirements encapsulated in the Section are satisfied. It is not necessary for attracting the provisions of Section 304-B IPC that apart from showing that the death has occurred in unnatural circumstances within seven years of her marriage and that soon before her death and the woman was subjected to cruelty or harassment by the accused for, or in connection with, any demand for dowry, it must also be shown that the accused had any direct nexus with the death.

25. The term "soon before her death" used in Section 304-B IPC and Section 113-B of the Indian Evidence Act connotes a sense of proximity of time between the dowry related maltreatment amounting to cruelty and the incident of death. Therefore an isolated incident of dowry related ill-treatment amounting to cruelty meted out to the woman in the remote past may not be independently relevant but it may be relevant if it forms a chain of continuous incident of maltreatment amounting to cruelty.

26. Thus, the legal position is very clear. In case of dowry death, prosecution is not obliged to establish that the accused persons were directly involved in the death of deceased in terms of inflicting physical injuries. If the ingredients of Section 304-B IPC are established by prosecution, then the court would have no option but to presume that the accused has committed dowry death unless of course, accused or accused persons are able to successfully rebut the presumption.

27. Coming back to the facts of the present appeal we find the following uncontroverted facts:-

(a) Death of deceased Anita occurred within seven months of her marriage thereby the main condition prescribed under Section 304-B IPC namely within seven years of marriage was fulfilled. The FIR has disclosed the date of marriage as 9.7.2000. This date of marriage has been narrated by the prosecution witnesses and accepted by the appellants during the course of their statement under Section 313 Cr.P.C. The date of death of deceased Anita was also not disputed by the prosecution witnesses namely Shambhu Lal Srivastava, P.W.-1 and Urmila Srivastava, P.W.-6. The appellants have also accepted this date of death during their examination under Section 313 Cr.P.C. The written statement submitted by appellant Vinay Kumar also discloses this date. The inquest report (Ex-Ka-6) and the post mortem report (Ex-Ka-2) also establish this fact. P.W.-2, Dr. S. N.U. Ahmad has testified that he conducted the autopsy on the corpse of the deceased Anita Srivastava on 4.2.2001 at Moti Lal Nehru Hospital, Allahabad and in his opinion the deceased died on 2.2.2001 at 5-5.30 p.m. It is therefore, clear that deceased Anita died within seven months of her marriage.

(b) Death of deceased was not normal as evidenced by the version of P.W.-2 Dr. S. N. U. Ahmad who conducted the autopsy on the body of the deceased. He has opined that the deceased died on account of asphyxia induced by smothering. He also found several anti mortem injuries on the person of the deceased which are delineated as follows:-

(I) Linear contusion 5cm X 1 cm on right side of neck 5cm below and below right angle of mandible.

(ii) A contusion 1 cm X 0.05 cm on under the chin just on left side.

(iii) A contusion 12 cm X 1 cm on left side of waist just above the iliac bone.

(iv) Nose is depressed and flattened fracture of under bone cartilage and septum.

(v) Abrasion on inner surface of upper lips.

The testimonies of prosecution witnesses P.W.-1 Shambhu Lal Srivastava and P.W-6 Urmila Devi, the father and mother of the deceased respectively also lends credibility to this conclusion. The deceased died at Reewa where she was living with her husband. Her husband Vinay Kumar Srivastava refused to explain the circumstances of her death during his examination under Section 313 Cr.P.C. specifically stating that he will submit written statement. This written statement discussed herein-above also accepts that the deceased died in abnormal circumstance. He has denied the prosecution allegation of murder of the deceased by smothering. But the written statement submitted by the appellant husband accepts that the deceased died in the circumstances which were not normal, therefore, we can safely conclude that the second condition of Section 304-B IPC is also fulfilled.

28. The only disputed ingredients are whether any dowry demands were made from the deceased or her parents ? and whether the deceased was tortured and subjected to cruelty on non fulfilment of these dowry demands ?

29. In this regard, the prosecution has adduced the testimonies of two persons namely P.W.-1 Shambhu Lal Srivastava and P.W-6 Urmila Devi, the father and mother of the deceased. P.W.-1 Shambhu Lal Srivastava has testified that immediately in the aftermath of the marriage the deceased told her parents that the appellants were demanding Rs. 50,000/- for payment of bribe for securing a good job for appellant Vinay Kumar. This fact was disclosed by Anita in the month of August, 2000 i.e. within two months of her marriage. Similar statement has been made by P.W.-6 Smt Urmila Srivastava, mother of the deceased. Both of them have testified that they visited the in-laws of the deceased Anita Srivastava in the month of September, where the deceased Anita broke down and again narrated the demand of dowry made by the appellants. This time she also disclosed the threats of dire consequences had been made on non fulfilment of dowry demand. Same demands were again made directly to the parents of the deceased when the appellant Vinay Kumar Srivastava and his brother Ravi Kumar visited her parental home for 'vidai'. This time the appellant Vinay Kumar directly asked P.W.-1 Shambhu Lal Srivastava for money who showed his inability to arrange the same. On this refusal, the appellant Vinay Kumar Srivastava threatened him that he will face dire consequences. Both witnesses have disclosed telephonic conversations in which the demands for dowry were made and on showing inability to arrange this amount anger was displayed and specific threats of serious consequences were made. These threats to deceased and her parents also amount to cruelty in terms of Section 498-A IPC explanation (a) of which talks of mental cruelty as well.

30. On 31.1.2001, just two days prior to the fateful incident the deceased Anita called up her parents and expressed her apprehension of impending danger to her life if the demand for dowry was not fulfilled. Both of these witnesses have been extensively cross examined where they have reiterated that the deceased was subjected to torture and cruelty on account of non fulfilment of dowry demand. We have carefully examined their testimonies and believe that they are trust worthy witnesses.

31. Now the question arises as to whether the report of torture and cruelty given by the deceased Anita to her parents are admissible?

32. In Sharad Birdhichand Sarda Vs State of Maharashtra, 1984, Crl. L.J., 1738, the Hon'ble Apex Court has resolved this dispute. The Hon'ble Apex Court in this judgement has propounded the law in the following terms:-

"(1) Section 32 of the Indian Evidence Act is an exception to the rule of hearsay and makes admissible the statement of a person who dies. whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or relates to circumstances leading to the death. In this respect, Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or very with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as on organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statements may be admissible under Section 32.

(3) The second part of Clause 1 of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstance which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fell within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."

33. The aforesaid proposition of law makes it abundantly clear that the statements of torture and cruelty reported by the deceased before her death are relevant and admissible under Section 32 of the Evidence Act.

34. The parents of deceased have clearly testified that the deceased was repeatedly narrating the story of torture and cruelty to them. There is absolutely no reason to disbelieve their testimonies especially in the light of dowry demand made directly to the father of the deceased P.W.-1 Shambhu Lal Srivastava. Infact Shambhu Lal Srivastava has testified that when he showed his inability to arrange Rs. 50,000/- a direct threat was made to him by appellant Vinay Kumar. Appellant Vinay Kumar brazenly told P.W-1 Shambhu Lal Srivastava that he will face serious consequences for not yielding to his demands.

35. Hon'ble Apex Court in Mustafa Shahadal Shaikh Vs State of Maharashtra, AIR, 2013 SC 851 relied on the testimonies of parents of deceased and other witnesses who in turn narrated the story of torture communicated to them by the deceased. In Kashmir Kaur Vs State of Punjab AIR 2013, SC 1039, Hon'ble Apex Court accepted the story of torture communicated by the deceased to her parents. The facts of Kashmir Kaur (supra) are closer to the facts of the present case.

36. We have examined the testimonies of P.W-1 Shambhu Lal Srivastava and P.W.-6 Urmila Devi, father and mother of the deceased Anita. Their testimonies can be accepted for establishing two other ingredients of Section 304-B IPC i.e. the demand of dowry and acts of cruelty on non fulfilment of such dowry demand soon before the death of deceased Anita.

37. Learned counsel for the appellants has argued that investigation was not conducted properly. He has also pointed out that neighbours of the deceased at Reewa were not produced in evidence. Neither any attempt was made to produce the landlord of deceased Anita nor were any witnesses summoned from Reewa Medical College, Reewa, Madhya Pradesh.

38. We have examined the testimony of the Investigating Officer, P.w.-7 Ganga Prasad Tripathi, Addl. Superintendent of Police. There is no doubt that the investigation was conducted in a shoddy manner. Certain amount of callousness can be seen but we are afraid that by itself would not make the prosecution story doubtful. The death of the deceased within seven months of her marriage is not disputed. We believe the testimonies of parents with regard to the demand of dowry and torture of deceased Anita with a view to coercing her parents to give dowry. Therefore the prosecution story cannot be thrown away merely on the basis of some latches on the part of the investigating officer.

39. The Hon'ble Apex Court in Bishundeo Poddar and others Vs the State of Bihar 2003 Crl.L.J.1558 held:-

"Be that as it may, the fate of the case does not depend on what the investigating officer or the prosecutor ought to have done and evidence ought to have been led. The fate depends on the evidence which is on record."

40. Similarly, the Hon'ble Apex Court in its judgement of Amar Singh Vs Balwinder Singh, 2003 Crl. L. J. 1282 has held that every failure or omission of investigating Officer cannot render prosecution case doubtful or unworthy of belief.

41. Learned Trial Court has given benefit of doubt to appellant Ravi Kumar under Section 304-B IPC because in its opinion appellant Ravi Kumar was not present at Reewa on the date of occurrence. The court below believed the evidence of D.W-1 P.K.Singh and D.W-4 Manoj Kumar Srivastava in this regard. Learned Trial Judge concluded that there was sufficient evidence to convict the appellants under Section 498-A IPC and Section 4 Dowry Prohibition Act. Ordinarily, if the allegations of dowry demand and torture on non fulfilment of such demands are accepted then there is little scope for acquittal of accused if the deceased dies in abnormal circumstance within seven years of her marriage. But in the present case we believe that the trial Judge was right albeit for different reasons.

42. It is true that the prosecution has levelled same allegations against all the appellants but close scrutiny reveals that deceased, in the aftermath of her marriage primarily lived at Reewa. In between she spent considerable time at Pratapgarh, her parental home. P.W.-1 Shambhu Lal Srivastava and P.W-6 Urmila Devi have testified that the deceased spent 20-25 days in August-September at their home. She again came in November and spent some time with her parents on the occasion of marriage in the family. The evidence further reveals that the appellant Vinay Kumar came in the month of September for 'vidai' and took the deceased Anita to Reewa (M.P.). She died at Reewa on 2.2.2001 in abnormal circumstance within seven months of her marriage. It can be concluded safely that she spent little time with her parents-in-law and Jeth Ravi Kumar at Allahabad during seven months of her marriage. There is no evidence to suggest that the appellant Ravi Kumar visited the appellant Vinay Kumar and deceased regularly, except evidence of one telephone call of deceased dated 31.1.2001 in which she informed her father about the visit of late Harish Chandra and appellant Ravi Kumar but there is no evidence that they were present on the date of occurrence. There is no specific evidence of torture of deceased by appellant Ravi Kumar.

43. It is true that the deceased Anita conveyed the demand of dowry made by all the appellants to her parents. It is also true that the parents of deceased P.W.-1 Shambhu Lal Srivastava and P.W.-6 Urmila Devi have testified in similar manner against all the appellants but as a measure of abundant caution it would be prudent to allow the appeal of appellant Ravi Kumar. We believe that there is no satisfactory evidence of any acts of torture committed by the appellant Ravi Kumar.

44. It is pertinent to point out that the demand of Rs. 50,000/- was made primarily to secure a good job for the appellant Vinay Kumar. He would have been the beneficiary if the demand had been accepted. Also the deceased lived with him most of time after marriage. The death occurred at Reewa. The appellant Vinay Kumar was directly responsible for her trauma and travails and ultimately for her death. There is no doubt that the witnesses have testified against all persons but considering the bitterness and anger of the prosecution witnesses,howsoever justifiable, it would be safer to convict only the appellant Vinay Kumar. The appellant Ravi Kumar has already been acquitted by the court below under Section 304-B IPC and Section 3 of Dowry Prohibition Act. He is also entitled of acquittal under Section 498-A IPC and Section 4 of Dowry Prohibition Act.

45. It would not be out of place to mention that even if certain parts of testimonies of witnesses are not accepted fully their entire evidence cannot be discarded on this score. In India the principle of "Falsus in Uno Falsus in Omnibus" is not applicable as laid down by the Hon'ble Supreme Court in Rizan Vs Chhatisgarh, 2003 Crl.L.J. 1226 (SC) in following words:-

" In essence prayer is to apply the principle of falsus in uno falsus in omnibus" (false in one thing, false in every thing). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co accused persons, his conviction can be maintained. It is the duty of court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict in an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in Omnibus" has no application in India and the witnesses cannot be branded as liar."

46. In the said judgement Hon'ble Apex Court has further held that merely because some of the accused persons have been acquitted though evidence against all of them, so far as direct testimony went, was the same, does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to court to differentiate between the accused who have been acquitted from those who have been convicted. (Gurcharan Singh & another Vs State of Punjab (AIR 1956 SC 460)". The Hon'ble Supreme Court further held that doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. One hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. Therefore, we conclude that appellant Vinay Kumar has rightly been convicted under Sections 498-A,304-B IPC and Section 4 of Dowry Prohibition Act.

47. At the initial stage of appeal on 28.9.2004, an argument was raised before this Court regarding lack of jurisdiction of Court at Allahabad. This Court passed the following orders on that day, which are quoted as under:-

"Heard Sri V.P. Srivastava, learned counsel for the appellant and learned AGA.

It is contended that according to prosecution case the incident had taken place at Reewa within the State of M.P. And, as such, the UP court had not jurisdiction to try the accused.

The point raised by learned counsel for the appellant will be considered at the appropriate stage i.e. at the time of final hearing of the appeal.

Perused the lower court record and the findings recorded by the trial Court. The unfortunate wife Anita was married with the appellant Vinay Kumar according to Hindu Rites on 9.7.2000 and she died on account of unnatural death on 2.2.2001, within seven months, in her husband's house. The death was due to smothering and five other ante mortem injuries were also found on the body of the deceased.

Considering the facts and circumstances, at this stage no case for bail is made out. The prayer for bail is therefore, rejected."

48. At the final stage, no argument was raised regarding jurisdiction of trial Court. But we prefer to make few points regarding this argument raised at the initial stage of these appeals. Prosecution evidence has disclosed that the marriage was solemnised in Uttar Pradesh. The deceased went to Allahabad initially. Demand of dowry was raised at Allahabad, Pratapgarh and subsequently from Reewa (M.P.). Threats were made at Pratapgarh and at Allahabad. The prosecution has alleged that the deceased was tortured and subjected to cruelty both at Allahabad and at Reewa on non fulfilment of dowry demand. Therefore, under Section 178 Cr.P.C. trial could have been conducted either at Reewa (M.P.) or at Allahabad. The courts at Allahabad did not lack jurisdiction to try the offences which are continuing in nature.

49. In the result the Criminal Appeal No. 3502 of 2002 filed by appellant Vinay Kumar is hereby dismissed. He is directed to surrender before the court below forthwith, if not already surrendered to serve out the remaining period of sentence.

50. The Criminal Appeal No. 3375 of 2002 filed by appellant Ravi Kumar is hereby allowed. We set aside the judgement of conviction and order of sentence as regards the appellant Ravi Kumar by acquitting him from the charges under Section 498-A IPC and Section 4 of Dowry Prohibition Act. The appellant Ravi Kumar, if is in custody shall be released forthwith, if not wanted in any other case and in case he is on bail, his bail bonds are discharged.

Office is directed to certify the copy of this order to the concerned trial court through learned District and Sessions Judge, Allahabad within a fortnight.

Order Date :- 05.07.2013

RavindraKSingh