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Sec. 304 B I.P.C.= PANCHANAND MANDAL @ … APPELLANTS PACHAN MANDAL & ANR. VERSUS STATE OF JHARKHAND … RESPONDENT published in judis.nic.in/supremecourt/filename=40850

REPORTABLE

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

Sec. 304 B I.P.C.

Non – examination of the scribe A.S.I. of dying declaration is fatal to the prosecution;

No evidence of cruelty or harassment in connection with demand of dowry soon before the death;

prosecution failed to prove it’s case beyong reasonable doubts – Appeal allowed;

Thus, we find that, practically there was no evidence  to  prove  that

there was any cruelty or harassment for or in connection with the demand  of

dowry  soon before the death of the deceased. 

Moreover,   the  deceased  has

not made any statement in her dying declaration indicating demand of  dowry.

Defence has successfully created a valid doubt as  to  authenticity  of  the

dying declaration as the police  officer  who  recorded  the  same  was  not

examined. 

Such  deficiency in evidence  proves  fatal  for  the  prosecution

case as evidence of cruelty and harassment in general is not  sufficient  to

attract Section 304B IPC.

Appeal  is  allowed.

The accused are directed to be released forthwith, if not  required  in  any

other case.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

 

CRIMINAL APPEAL NO.2173 OF 2009

 
PANCHANAND MANDAL @ … APPELLANTS
PACHAN MANDAL & ANR.
VERSUS
STATE OF JHARKHAND … RESPONDENT

 

J U D G M E N T

 

SUDHANSU JYOTI MUKHOPADHAYA, J.
This appeal has been preferred against the judgment dated 20th
September, 2006 passed by the Division Bench of the Jharkhand High Court,
Ranchi in Criminal Appeal No. 441 of 2001. By its impugned judgment, the
Division Bench dismissed the criminal appeal filed by the appellants and
affirmed the order of conviction and sentence passed by the Trial Court.
Thus Trial Court order, finding the appellants- Panchanan Mandal @Pachan
Mandal and Malti Devi alongwith two others guilty of the offence under
Section 304(B)/34 IPC and convicting them with imprisonment for life was
upheld by the High Court.
2. The case of the prosecution is based on fard-beyan (I.R.) of
informant Bachchu Sao (PW-14) who is the brother of the deceased – Basanti
Devi. According to the fard-beyan(I.R.) recorded on 14th August, 1998 at
Sadar Hospital, Giridih, the marriage of his deceased sister Basanti Devi
was solemnised with the accused Kaleshwar Mandal about five years prior
to her death. On 12th August, 1998, Bachcho Sao got information that his
sister- Basanti Devi had suffered burns and was admitted in Giridih Sadar
Hospital for treatment. He came to Sadar Hospital, Giridih alongwith other
members of his family in the evening of 12th August, 1998 itself. He saw
his sister had been badly charred with fire. Her whole body had sustained
burns. On 13.8.1998 at about 11.00A.M. when she regained her senses, she
told him that at about 9.00-10.00 at the night of 11.8.1998 while she was
baking bread in the kitchen of her –in-laws house; her father-in-law-
accused Panchanan Mandal, his wife-accused Malti Devi and his two sons Falo
Mandal and Daso Mandal came there. Her father-in-law poured kerosene oil
on her head from a tin and her mother-in-law set fire to her sari with a
burning wood of her oven saying that she had not brought a cow and a golden
ring in dowry. Her elder brother-in-law (jaith)- Falo Mandal and younger
brother-in-law(Daiver)- Daso Mandal took out knives and started
threatening her that if she cried aloud she would be killed. When she tried
to extinguish fire and came out of the room, all the accused persons
pushed her inside the kitchen with lathis and they kept on watching her
burning. She also stated him that her husband had gone to Calcutta but
while leaving for Calcutta, he had asked the members of his family to kill
the deceased by burning. In the fard-beyan, it is further stated that
whenever the deceased used to come to the house of her informant brother,
she used to say that her-in-laws always harass her for a cow and a ring as
dowry and sometimes they even assaulted her. Her statement had also been
recorded by an A.S.I. of Police on 13.8.1998 at about noon at the hospital
itself. The deceased succumbed to the injuries at about 2.00 A.M. on
14.8.1998 during the course of her treatment.
3. On the basis of fard-beyan(I.R.), Madhupur P.S. case No.160/98 dated
16.8.1998 was registered at Madhupur Police Station. After investigation
father-in-law, mother-in-law, two brother-in-laws and husband of the
deceased were charge-sheeted for trial.
4. The accused denied the charges leveled against them and pleaded
their innocence. Their defence was that Basanti Devi had accidently caught
fire while she was cooking food in her in-laws house; the accused persons
had tried their level best to extinguish the fire, but still she sustained
injuries. Her in-laws brought her to Giridih hospital for her treatment
and the accused persons had spent a huge amount for her treatment. Thus,
they were not liable for any offence on account of her death which was
actually caused due to accidental fire.
5. To bring home the charges, the prosecution examined 16 witnesses. PW-
1(Chhatradhari Mandal; PW-2(Sanjay Kumar Mandal); PW-3 (Kedar Ram); PW-4
(Pairu Kole; PW-5 (Tulsi Mandal), PW-7(Nunulal Mandal); and PW-11 (Janki
Mandal) did not support the case of the prosecution and were declared
hostile. PW-6 (Kameshwar Mandal); PW-8 (Tribhuvan Ram); PW-10 (Jiwan
Mandal) tendered on behalf of the prosecution. PW-16 (Ashok Kr. Mishra)
being a formal witness has proved the post-mortem report of the deceased
which was marked as Ext.7.
PW-14 Bachchu Sao is the brother of the deceased who is also the
informant, PW-13; Bholia Devi is the mother of the deceased, PW-12; Gulab
Sah is the co-villager of the informant, who had also gone with informant
to see the deceased in hospital; PW-9; Janardhan Tiwary is the I.O. of the
case. Ext.4 is stated to be the dying declaration. Mainly on the basis of
the dying declaration (Ext.4) and the statements of the PW-12, PW-13 and PW-
14, the Trial Court held the charges under Section 304B/34 IPC proved
against the four accused. All the four accused were convicted and
sentenced. The other accused Kaleshwar Mandal, husband of the deceased was
acquitted of the charges on the ground that he left the village prior to
the occurrence which means that he was not present at the scene of
occurrence.
Learned counsel for the appellants submitted that PWs 13 and 14 being
mother and brother of the deceased are interested witnesses. PW-12 is also
their co-villager. Therefore, their evidences are not fit for reliance.
According to him, the other independent witnesses PWs. 1,2,3,4,5,7 and 11
have not said that the deceased was subject to cruelty for dowry. The
evidences of PWs 12, 13 and 14 should be rejected out-right. Further,
according to the learned counsel for the appellant, no reliance should be
placed on Ext.4, so called dying declaration, for different reasons.
C.Paswan, ASI, who recorded the dying declaration has not been examined.
There is no certificate in the dying declaration that the deceased was in
a mentally and medically fit condition for making those statements.
Further, according to the learned counsel for the appellant, in the case
of burning it is not possible for the person to be in medically fit
condition to give statement as recorded in Ext.4.
Learned counsel for the State urged that in fard-beyan, ingredients of
Section 304B(1)I.P.C. being present, the presumption of dowry death will go
against the accused. According to him, as per statement of PW-14, brother
of the deceased and PW-13, mother of the deceased, the marriage took place
about 5 years prior to her death, cow and golden ring demanded by her in-
laws, the said demand was not met by her family and her in-laws used to
assault her because those demands were not fulfilled. The informant has
made clear statement in his evidence that in the beginning, the conjugal
life of his deceased sister was sweet but later on the accused persons
started subjecting her to cruelty in connection with demand for a cow and
a golden ring by way of dowry. These demands definitely fall within the
meaning of dowry as contemplated under Section 2 of the Dowry Prohibition
Act. Therefore, from the evidence of PWs-13 and 14, it is clear that the
deceased was subjected to cruelty and harassment by her husband and in-
laws.
8. We have heard Mr. Anil Karnwal, learned counsel, who assisted the
Court as Amicus Curiae on behalf of the appellant and Mr. Jayesh Gourav,
learned counsel for the State.
We have also perused the evidence on record.
9. From the findings of the Trial Court, as affirmed by the High Court,
we have noticed that the case of the prosecution is solely based on an
FIR(Ext.1), Dying Declaration(Ext.4) and the statements made by PWs 13
and 14.
10. Section 304B(1), IPC deals with Dowry Death and is stated as follows:
(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.”

 
To attract the provision, the following basic ingredients of the
offence are required to be established:
The Death of the woman should be caused by burns or fatal injury or
otherwise; than under normal circumstances;
Such death should have occurred within 7 years of her marriage.
(iii)She must have been subjected to cruelty or harassment by husband or
any relative of her husband; and
(iv)Such cruelty or harassment should be for or in connection with
demand of dowry.
11. This Court in the case of Biswajit Halder Alias Babu Halder And
Others vs. State of W.B., (2008) 1 SCC 202 held that under Section 304-B
IPC the prosecution cannot escape the burden of proof that the harassment
or cruelty was relating to the demand for dowry and the same was caused
within seven years of marriage.
12. In the present case, PW-14; Bachchu Sao, brother of the deceased has
stated that marriage of the decased took place about 5 years prior to the
date of death. He also stated that the relationship of the deceased with
her husband and with in-laws were good initially. He further stated that
later there was a demand of dowry in the form of demand for a cow and a
gold ring. PW-13; Bholia Devi, mother of the deceased has also made
statement that the marriage of the deceased took place about 5 years prior
to the death. According to her, the deceased at death bed told her about
the burning by father-in-law and mother-in-law and stated that there was a
demand of dowry and harassment. But her statement cannot be relied upon in
view of the fact that there is no evidence to suggest that just before the
death PW-13; Bolia Devi had talked to the deceased or that the deceased was
in the condition to make statements. Her statement is corroborated by PW-
14, Bachchu Sao, who was present in the hospital, but not corroborated by
PW-12; Gulab Sah- a neighbor who was also said to be present in the
hospital.
13. Ext.4 – the dying declaration also suffers from infirmities. The
author who recorded the dying declaration C.Paswan, ASI was not produced
by the prosecution for examination or cross-examination. The explanation
given by the prosecution in this matter was that the attendance of the ASI
could not be secured inspite of summons issued against him and the letters
written to the Superintendent of Police, Deoghar and Giridih. The Trial
Court wrongly held that this was a convincing explanation. In fact, non-
appearance of ASI has prejudicially affected the defendant’s interest as
they were denied the opportunity to cross-examine him. It is admitted that
dying declaration (Ext.4) was not certified by any medical expert stating
that the deceased was in medically fit condition for giving statement.
Though such certificate is not mandatory, it was the duty of the officer
who recorded the same to mention whether the deceased was in mentally and
medically fit condition for making such statement, particularly when the
case was of a third degree burn which could lead to death.
14. In the instant case, ominous allegations have been made against the
in-laws of the deceased. No specific incident has been stated by the PW-
13; Bholia Devi, mother of the deceased or PW-14; Bachchu Saw, brother of
the deceased in their statements. Nothing is on the record to suggest that
the deceased was subjected to cruelty and harassment “soon before her
death” and “in connection with the demand of dowry”.
15. Thus, we find that, practically there was no evidence to prove that
there was any cruelty or harassment for or in connection with the demand of
dowry soon before the death of the deceased. Moreover, the deceased has
not made any statement in her dying declaration indicating demand of dowry.
Defence has successfully created a valid doubt as to authenticity of the
dying declaration as the police officer who recorded the same was not
examined. Such deficiency in evidence proves fatal for the prosecution
case as evidence of cruelty and harassment in general is not sufficient to
attract Section 304B IPC.
16. In view of the above facts, we hold that the prosecution miserably
failed to prove the case beyond reasonable doubt. Hence, the conviction and
sentence awarded cannot be maintained. We accordingly set aside the
impugned judgment dated 10.8.2001 passed by the Session Judge, Deoghar in
Sessions Trial No.; 158/1999 in respect to Panchanan Mandal and Malti Devi
and the judgment dated 20.9.2006 passed by the Division Bench of the
Jharkhand High Court in Criminal Appeal. No. 441/2001. Appeal is allowed.
The accused are directed to be released forthwith, if not required in any
other case.

 

 

 

……………………………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)

 
……………………………………………………………………….J.
(KURIAN JOSEPH)
NEW DELHI,
OCTOBER 4,2013.

 

 

 

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