Panchanand Mandal @ Pachan Mandal Vs State of Jharkhand

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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

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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 fardbeyan

(I.R.) of informant Bachchu Sao (PW14) 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 9.0010.00 at the night of 11.8.1998 while

she was baking bread in the kitchen of her –inlaws house;

her fatherinlawaccused Panchanan Mandal, his wife

accused Malti Devi and his two sons Falo Mandal and Daso

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Mandal came there. Her fatherinlaw poured kerosene oil

on her head from a tin and her motherinlaw 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

brotherinlaw (jaith) Falo Mandal and younger brother

inlaw(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 herinlaws 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.

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3. On the basis of fardbeyan(I.R.), Madhupur P.S. case

No.160/98 dated 16.8.1998 was registered at Madhupur Police

Station. After investigation fatherinlaw, motherinlaw,

two brotherinlaws and husband of the deceased were

chargesheeted 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 inlaws house; the accused persons had tried their

level best to extinguish the fire, but still she sustained

injuries. Her inlaws 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. PW1(Chhatradhari Mandal; PW2(Sanjay Kumar

Mandal); PW3 (Kedar Ram); PW4 (Pairu Kole; PW5 (Tulsi

Mandal), PW7(Nunulal Mandal); and PW11 (Janki Mandal) did

not support the case of the prosecution and were declared

hostile. PW6 (Kameshwar Mandal); PW8 (Tribhuvan Ram);

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PW10 (Jiwan Mandal) tendered on behalf of the prosecution.

PW16 (Ashok Kr. Mishra) being a formal witness has

proved the postmortem report of the deceased which was

marked as Ext.7.

PW14 Bachchu Sao is the brother of the deceased who

is also the informant, PW13; Bholia Devi is the mother of

the deceased, PW12; Gulab Sah is the covillager of the

informant, who had also gone with informant to see the

deceased in hospital; PW9; 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 PW12, PW13 and PW14, 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.

6. Learned counsel for the appellants submitted that PWs

13 and 14 being mother and brother of the deceased are

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interested witnesses. PW12 is also their covillager.

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 outright. 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.

7. Learned counsel for the State urged that in fardbeyan,

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 PW14, brother of the

deceased and PW13, mother of the deceased, the marriage

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took place about 5 years prior to her death, cow and

golden ring demanded by her inlaws, the said demand was

not met by her family and her inlaws 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 inlaws.

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

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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:

(i) The Death of the woman should be caused by burns

or fatal injury or otherwise; than under normal

circumstances;

(ii) 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

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(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 304B 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, PW14; 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 inlaws 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. PW13; 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 fatherinlaw and motherinlaw and stated

that there was a demand of dowry and harassment. But her

statement cannot be relied upon in view of the fact that

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there is no evidence to suggest that just before the death

PW13; Bolia Devi had talked to the deceased or that the

deceased was in the condition to make statements. Her

statement is corroborated by PW14, Bachchu Sao, who was

present in the hospital, but not corroborated by PW12;

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 crossexamination. 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 crossexamine 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

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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 inlaws of the deceased. No specific incident

has been stated by the PW13; Bholia Devi, mother of the

deceased or PW14; 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

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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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PANCHANAND MANDAL @ PACHAN MANDAL Vs STATE OF JHARKHAND

PANCHANAND MANDAL @ PACHAN MANDAL Vs STATE OF JHARKHAND