advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, October 5, 2013

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

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.

                                                  REPORTABLE
                        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.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.