PANCHANAND MANDAL @ PACHAN MANDAL Vs STATE OF JHARKHAND
Bench: SUDHANSU JYOTI MUKHOPADHAYA,KURIAN JOSEPH
Case number: Crl.A. No.-002173-002173 / 2009
Diary number: 60348 / 2007
Advocates: JAIL PETITION Vs
KRISHNANAND PANDEYA
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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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