PANCHANAND MANDAL @ PACHAN MANDAL & ANR.versusSTATE OF JHARKHAND

                        [2013] 11 S.C.R. 328


A    PANCHANAND MANDAL @ PACHAN MANDAL & ANR.
                                  V.
                      STATE OF JHARKHAND
             -   (Criminal Appeal No. 2173 of 2009)
                         OCTOBER 4, 2013
B
           [SUDHANSU JYOTI MUKHOPADHAYA AND
                   KURIAN JOSEPH, JJ.]

          Penal Code, 1860- s.3048 - Dowry death -A/legations
C    of - Prosecution case inter. a/ia based on dying declaration
     (Ext.4) and statements made by PWs 13 and 14, the brother
     and mother of the deceased - Conviction of appellants
     (parents-in-law of the deceased) - Justification - Held: Not
    justified - Statement made by PW13 not reliable since no
o    evidence to suggest that just before the death PW-13 had
    talked to deceased or that deceased was in the condition to
    make statements - Her statement corroborated by PW-14,
    but not corroborated by PW-12 - Ext.4, the dying declaration
    also suffers from infirmities - AS/ who recorded the dying
E   declaration was not produced by the prosecution for
    examination or cross-examination - Non-appearance of AS/
    prejudicially affected the defendant's interest as they were
    denied the opportunity to cross-examine him - The dying
    declaration (Ext.4) was not certified by any medical expert
F   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 -
G   Ominous allegations were made against the in-laws of the
    deceased - No specific incident stated by the PW-13 or PW-
    14 in their statements - Not/1ing on record to suggest that
    deceased was subjected to cruelty and harassment "soon

H                                328
PANCHANAND MANDAL @ PACHAN MANDAL v. STATE OF 329
                JHARKHAND
before her death" and "in connection with the demand of A
dowry" - Moreover, deceased did not make any statement in
her dying declaration indicating demand of dowry - Valid
doubt as to authenticity of the dying declaration - Evidence
of cruelty and harassment in general not sufficient to attract
s. 3048 /PC - Prosecution miserably failed to prove the case B
beyond reasonable doubt.

     The sister of PW-14(informant) suffered burn injuries
and later died in Hospital. The prosecution case was that
when the deceased was baking bread in the kitchen, her C
in-laws poured kerosene oil on her head and set fire to
her sari saying that she had not brought a cow and a
golden ring in dowry. It was alleged that the deceased
was always harassed for dowry and sometimes was even
assaulted. The father-in-law, mother-in-law, two brother-
in-laws and husband of the deceased were charge- D
sheeted for trial. PW-13 is the mother of the deceased
while PW-12 is a co-villager of PW14 who 11iad gone with
him to see the deceased in hospital. 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- E
13 and PW-14, the trial court convicted the parents-in-law
and brothers-in-law of the deceased under Section 3048/
34 IPC and sentenced them to life imprisonment, but
acquitted the deceased's husband on the ground that he
was not present at the scene of occurrence. The order F
of the trial court was affirmed by the High Court.

    The parents-in-law i.e. the appellants contended that
PWs 13 and 14 being mother and brother of the deceased
were interested witnesses while PW-12 was a co-villager, G
and therefore their evidences could not be relied upon.
Further, according to the appellant, no reliance should be
placed on Ext.4, the so called dying declaration, as the
ASI, who recorded the dying declaration was not
examined and there was no certificate in the dying
                                                           H
    330      SUPREME COURT REPORTS            (2013] 11 S.C.R.


A   declaration that the deceased was in a mentally and
    medically fit condition to making statements.

          Allowing the appeal, the Court

         HELD: 1. Section 3048(1 ), IPC deals with Dowry
B   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
C   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. [Para 10) [336-D, G-H; 337-A-B]
D
        Biswajit Halder Alias Babu Halder And Others vs. State
    of WB. (2008) 1 SCC 202: 2007 (4) SCR 120 - referred to.

        2.1. From the findings of the Trial Court, as affirmed
    by the High Court, it is clear that the case of the
E   prosecution is solely based on an FIR(Ext.1 ), Dying
    Declaration(Ext.4) and the statements made by PWs 13
    and 14. [Para 9) [336-D]

         2.2. PW-14, brother of the deceased has stated that
F   marriage of the deceased 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
G   gold ring. PW-13, 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
H
PANCHANAND MANDAL@-PACHAN MANDAL v. STATE OF 331
                JHARKHAND

cannot be relied upon in view of the fact that there is no     A
evidence to suggest that just before the death PW-13 had
talked to the deceased or that the deceased was in the
condition to make statements. Her statement is
corroborated by PW-14, who was present in the hospital,
but not corroborated by PW-12- a neighbor who was also         B
said to be present in the hospital. [Para 12] [337-D-G]
     2.3. Ext.4 - the dying declaration also suffers from
infirmities. The ASI who recorded the dying declaration
was not produced by the prosecution for examination or
cross-examination. The explanation given by the                c
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. The Trial Court wrongly held that this was a
convincing explanation. In fact, non-appearance of ASI         D
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      E
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. [Para 13] (337-H;       F
338-A-D]
     2.4. Ominous allegations have been made against
the in-laws of the deceased. No specific incident has been
stated by the PW-13, mother of the deceased or PW-14,
brother of the deceased in their statements. Nothing is        G
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".
Moreover, the deceased has not made any statement in
her dying declaration indicating demand of dowry.              H
    332      SUPREME COURT REPORTS              (2013] 11 S.C.R


A 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
B is not sufficient to attract Section 3048 IPC. [Paras 14, 15]
  [328-D-E, G-H]

      2.5. The prosecution miserably failed to prove the
  case beyond reasonable doubt. Hence, the conviction
C and sentence awarded cannot be maintained. [Para 16]
  [339-A]

                         Case Law Reference:
          2007 (4) SCR 120        referred to          Para 11
D       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 2173 of 2009.

        From the Judgment & Order dated 20.09.2006 of the High
    Court of Jharkhand at Ranchi in Crl. A.No. 441 of 2001.
E        Anil Karnwal (AC.), Sanjeev K. Bhardwaj, Manoj Joshi for
    the Appellants.

        Jayesh Gourav, Amrendra Kumar Choubey, Krishnanand
    Pandeya for the Respondent.
F
          The Judgment of the Court was delivered by

      SUDHANSU JYOTI MUKHOPADHAYA, J. 1. This appeal
  has been preferred against the judgment dated 20th
  September, 2006 passed by the Division Bench of the
G 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
H Manda! @Pachan Manda! and Ma!ti Devi alongwith two others
PANCHANAND MANDAL@ PACHAN MANDAL v. STATE OF 333
  JHARKHAND [SUDHANSU JYOTI MUKHOPADHAYA, J.]

guilty of the offence under Section 304(8)/34 IPC and convicting     A
them with imprisonment for life was upheld by the High Court.

      2. The case of the prosecution is based on fard-beyan (l.R.)
of informant Bachchu Sao (PW-14) who is the brother of the
deceased - Basanti Devi. According to the fard-beyan(l.R.)
                                                                     8
recorded on 14th August, 1998 at Sadar Hospital, Giridih, the
marriage of his deceased sister Basanti Devi was solemnised
with the accused Kaleshwar Manda! 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         C
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       D
of 11.8.1998 while she was baking bread in the kitchen of her
-in-laws house; her father-in-law-accused Panchanan Manda!,
his wife-accused Malti Devi and his two sons Falo Manda! and
Daso Manda! came there. Her father-in-law poured kerosene
oil on her head from a tin and her mother-in-law set fire to her     E
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 Qaith)- Falo Manda! and younger brother-in-law(Daiver)-
Daso Manda! took out knives and started threatening her that
if she cried aloud she would be killed. When she tried to            F
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              G
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 AS.I. of Police           H
    334      SUPREME COURT REPORTS                    (2013] 11 S.C.R.


A   on 13.8.1998 at about noon at the hospital itself. The deceased
    succumbed to the injuries at about 2.00 AM. on 14.8.1998
    during the course of her treatment.

         3. On the basis of fard-beyan(l.R.), Madhupur P.S. case
    No.160/98 dated 16.8.1998 was registered at Madhupur Police
8
    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
C   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
D   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
E   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 Manda!); 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.
F   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
G   is also the informant, PW-13; Bholia Devi is the mother of the
    deceased, PW-12; Guiab 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 1.0. of the case. Ext.4
    is stated to be the dying declaration. Mainly on the basis of the
H   dying declaration (Ext.4) and the statements of the PW-12, PW-
 PANCHANAND MANDAL@ PACHAN MANDAL v. STATE 335
OF JHARKHAND [SUDHANSU JYOTI MUKHOPADHAYA, J.]

13 and PW-14, the Trial Court held the charges under Section A
3048/34 IPC proved against the four accused. All the four
accused were convicted and sentenced. The other accused
Kaleshwar Manda!, 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 B
of occurrence.

     6. 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, C
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, D
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 E
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 fard-beyan,
ingredients of Section 3048(1)1.P.C. being present, the F
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 G
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
                                                                   H
    336          SUPREME COURT REPORTS               [2013] 11 S.C.R


A   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
B   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.

C         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
D   the statements made by PWs 13 and 14.

         10. Section 3048(1), IPC deals with Dowry Death and is
    stated as follows:

          (1) Where the death of a woman is caused by any burns
E         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 efbwry,
F         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:
G
           (i)     The Death of the woman should be caused by
                   burns or fatal injury or otherwise; than under normal
                   circumstances;

H
PANCHANAND MANDAL@ PACHAN MANDAL v. STATE OF 337
  JHARKHAND [SUDHANSU JYOTI MUKHOPADHAYA, J.]

      (ii)    Such death should have occurred within 7 years of   A
              her marriage.

      (iii)   She must have been subjected to cruelty or
              harassment by husband or any relative of her
              husband; and                                        B

      (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 WB., (2008) 1 SCC 202 held         C
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.
                                                                  D
      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 E
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 F
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 G
present in the hospital, but not corroborated by PW-12; Guiab
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
                                                                  H
    338     SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A  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, Deogha·r
B 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
c 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
D 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
E 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".

F      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
G 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 3048 IPC.
H
PANCHANAND MANDAL@ PACHAN MAN DAL v. STATE OF 339
  JHARKHAND [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     16. In view of the above facts, we hold that the prosecution A
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 B
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.                                                             c
B.B.B.                                        Appeal allowed.