- 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.
Dowry death ingredients
- 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
(iv)Such cruelty or harassment should be for or in connection with demand of dowry.
Prosecution has to prove the initial burden
- 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.
Prosecution does not prove that the deceased was in the condition to make statemente
- In the present case, PW14; Bachchu Sao, brother of the deceased has stated that 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 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 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 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 Saha neighbor who was also said to be present in the hospital.
Author who recorded dying declaration not examined
- 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, nonappearance 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 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.
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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.
Party
PANCHANAND MANDAL @ PACHAN MANDAL & ANR vs STATE OF JHARKHAND … CRIMINAL APPEAL NO.2173 OF 2009 – OCTOBER 4,2013.
