Allowed

Dinesh Mandal v. the State of Bihar

Patna HC2 May 2013CR. APP (SJ)/84/2001

Case brief

AI extract

What is this about?

In an appeal against conviction for dowry death and harassment, the High Court held that the prosecution failed to prove the identity of the deceased, the specific demand of dowry, and the existence of cruelty. Consequently, the conviction under Section 304 B IPC was unsustainable.

What did the court decide?

Criminal appeal allowed; conviction under Section 304 B IPC set aside; appellant discharged and entitled to bail.

Dinesh Mandal Vs the State of Bihar — Domestic Violence | Patna HC (2013)

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.84 of 2001 =========================================================== Dinesh Mandal, S/O-Late Lakhan Mandal, resident of village Tate Tola, Khuthari, P.S.-Kahalgaon, District-Bhagalpur .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Rakesh Kumar Sinha (Advocate) For the State : Mr. Sujit Kumar Singh (A.P.P.) =========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL JUDGMENT Date: 02-05-2013

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Heard learned counsel appearing for the appellant as

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well as learned Additional Public Prosecutor for the State and perused the record.

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This criminal appeal has been preferred by the sole appellant against the judgment of conviction dated 03.02.2001 and order of sentence dated 05.02.2001 passed by learned 6^th Additional Sessions Judge, Bhagalpur in Sessions Trial No. 95 of 1996 and Sessions Trial No. 622 of 1997 by which and whereunder he convicted the appellant for the offences punishable under Sections 304 B, 498 A of the Indian Penal Code and Section 4 of Dowry Prohibition Act and sentenced him to undergo rigorous imprisonment for ten years for the offence punishable under Section 304 B of the Indian Penal Code and to undergo rigorous imprisonment for two

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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years for the offence punishable under Section 498 A of the Indian Penal Code. No separate sentence was awarded to the appellant for the offence punishable under Section 4 of Dowry Prohibition Act. However, learned trial court directed that both the sentences would run concurrently. The learned trial court acquitted the appellant for the offences punishable under Sections 302, 201/34, 120 B of the Indian Penal Code. By the same impugned judgment, the learned trial court acquitted the co-accused, Shambhu Mandal, Fulo Devi, Kailash Mandal, Pawan Kumar and Ganesh Mandal of the charges framed against them for the offences punishable under Sections 302, 201/34, 120 B, 304B, 498 A and Section 4 of Dowry Prohibition Act.

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In brief, the prosecution case, is that one P.C. Ram, the then S.I.-cum-officer in charge of Sultanganj police station got a rumour at about 08:00 A.M. on 02.07.1995 to this effect that dead body of an unknown woman aged about 18 years was lying in Parwati Mill. To verify the aforesaid rumour, he along with S.I., S.K. Singh, A.S.I., V.V. Singh, A.S.I., Jai Ram Singh and armed forces along with constable no. 888 Ramanand Yadav, Chowkidar, 4/12, Shivan Paswan, Chowkidar, Jai Hind Tanti, Chowkidar, Rajendra Tanti proceeded to Parwati mill and reached there. He found that one dead body of unknown woman aged about 18 years was lying near the bush. He also noticed that part of saree of the deceased had been put

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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into her mouth and he found blackening on the neck of the deceased. He also found one white colour handkerchief on which Mangalsutra had been kept. He also found one pair of sleeper lying there. He suspected that unknown criminals committed rape and killed the aforesaid woman.

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The aforesaid S.I. P.C. Ram recorded his self statement and on the basis of aforesaid self statement, Sultanganj P.S. Case No. 133 of 1995 under Sections 376, 302, 201/34 of the Indian Penal Code was registered and on the same day formal first information report against unknown was prepared for the offences punishable under Sections 376, 302, 201/34 of the Indian Penal Code. The charge of investigation was given to S.I. S.K. Singh who has been examined before the trial court as P.W.11.

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P.W.11 started investigation. He prepared inquest report of deceased, inspected the place of occurrence and in course of investigation, on 06.07.1995, P.W.10, Mahendra Singh came at police station and gave written report (Exhibit-4). The aforesaid Mahendra Singh identified Saree, sleepers, Mangalsutra etc. and also identified the dead body by seeing the photograph of the dead body. P.W.10 by seeing the belongings of dead body as well as photographs of dead body claimed that aforesaid dead body was of his daughter. P.W.10 also disclosed that his son in law has come to his house and after that

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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P.W.11 went to the house of P.W.10 and arrested the appellant from the house of P.W.10. P.W.11 recoded the confessional statement of appellant and after that recorded further statement of P.W.10 as well as other witnesses and after completion of investigation, submitted charge sheet against the appellant as well as against five other accused showing them absconder. The cognizance of the offence was taken and the cases of appellant as well as other accused were committed to the court of sessions, in usual way. The cases of appellant as well as other accused were tried together and accordingly, appellant and other five accused were put on trial. The appellant along with five other accused was jointly charged for the offences punishable under Sections 302/34, 201/34, 120 B, 304 B, 498 A of the Indian Penal Code and Section 4 of the D.P. Act. The appellant and other accused denied the charges and claimed to be tried.

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In course of trial, prosecution examined, altogether, 11 witnesses and besides it, prosecution also proved signatures of the witnesses on seizure list as Exhibit-1 series, the inquest report as Exhibit-2, post mortem report as Exhibit-3, written report of P.W.10 as Exhibit-4, protest petition as Exhibit-5, self recorded statement of P.C. Ram as Exhibit-6, formal first information report as Exhibit-7, inquest report as Exhibit-8 and confessional statement of appellant as Exhibit-9.

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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The statements of appellant as well as other accused were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. No evidence was adduced on behalf of the appellant and other accused in support of their defence but from perusal of statements of the appellant and other accused recorded under Section 313 of the Cr.P.C. as well as trends of cross examination of prosecution witnesses, it appears that the defence of the appellant as well as other accused was total denial of prosecution story.

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The learned trial court, having relied upon the testimonies of prosecution witnesses as well as exhibits adduced on behalf of the prosecution, passed the impugned judgment of conviction and order of sentence in the manner as stated above.

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Learned counsel appearing for the appellant challenged the impugned judgment of conviction and order of sentence arguing that the learned trial court based his findings only on surmises and conjectures and as a matter of fact prosecution could not succeed to prove all the ingredients of Section 304 B of the Indian Penal Code. He further contended that P.W.4 had stated before the police in course of investigation that the relation of the appellant with his wife was very cordial and he used to visit at her house but in course of trial, she developed her statement and stated that relation of

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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the appellant with his wife was not cordial. He further submitted that articles recovered at the time of institution of the case were not produced before the trial court and, therefore, it is very difficult to say that the seized articles belonged to the wife of the appellant. He further submitted that there was nothing before the trial court to come on conclusion that the recovered dead body was of wife of the appellant and, therefore, learned trial court committed error in convicting and sentencing the appellant.

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On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that there was overwhelming materials before the trial court to come on the conclusion that the deceased was killed by the appellant for lust of dowry and, therefore, learned trial court rightly convicted and sentenced the appellant.

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Admittedly, an unknown dead body was recovered on 02.07.1995 and Exhibit- 6, the self recorded statement of P.C. Ram, reveals that one white coloured handkerchief, one Mangalsutra, one pair of sleepers were recovered near the aforesaid dead body. Exhibit-2, the inquest report, reveals that at the time of recovery of dead body, the deceased was wearing Saree, red coloured blouse, white coloured bracier, pettikot, bangles and rings (Bichiya).

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Admittedly, after recovery of dead body of an

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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unknown woman, initially, the case was registered against unknown miscreants for the offences punishable under Sections 376, 302, 201/34 of the Indian Penal Code but in course of investigation, P.W.10, himself, appeared before the police on 06.07.1995 and gave a written report which has been marked as Exhibit-4. In the aforesaid written report, P.W.10 stated that marriage of his daughter, Hemlata Kumari was solemnized with appellant on 08.02.1995 and after marriage, his son in law used to visit at his house and used to torture his daughter. He also stated in his written report that his son in law used to put pressure on his daughter to make a demand of motorcycle as well as colour television from her father. He also stated in his written report that on 01.07.1995 at about 01:00 p.m. appellant came to his house and on the same day at about 04:00 p.m. he took his daughter on pretext to watch a movie at Bhagalpur. P.W.10 further stated in his written report that he permitted the appellant to take his wife to watch the movie and after that the appellant left his house along with his wife but till late night of 01.07.1995 when appellant as well as his wife did not return to the house of P.W.10, P.W.10 as well as his other family members thought that appellant along with his wife might have gone to his home and on 05.07.1995, he sent his brother in law, namely Ranjan Kumar (P.W.7) to the house of appellant to ascertain the whereabouts of appellant as well as his wife. The

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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aforesaid Ranjan Kumar went to the house of the appellant and asked about the whereabouts of wife of appellant but appellant as well as his family members disclosed that the wife of appellant had not come to their home and appellant disclosed that his wife was dropped by him near Sultanganj Railway Station. In Exhibit-4, P.W.10 expressed his belief that appellant as well as his other family members had killed his daughter.

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On the basis of Exhibit-4, the investigation of this case took U turn and in course of investigation, appellant was arrested from the house of P.W.10 and after that Sections 498 A, 304 B, 120 B of the Indian Penal Code and ¾ of Dowry Prohibition Act were also added in the first information report.

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Admittedly, none has seen the actual killing of the deceased and admittedly, the appellant has not been found guilty for the offence punishable under Section 302 of the Indian Penal Code and, therefore, only question arises for determination as to whether prosecution could succeed to prove all the ingredients of Section 304 B of the Indian Penal Code or not. It is well settled principle of law that before seeking the conviction under Section 304 B of the Indian Penal Code, prosecution has to prove all the ingredients of Section 304 B of the Indian Penal Code. Now, it has to be seen as to whether prosecution has succeeded to prove all the ingredients of Section 304

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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B of the Indian Penal Code or not.

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P.W.10 has stated that marriage of his daughter was solemnized with appellant on 08.02.1995 and before marriage, at the time of marriage and after marriage the appellant made demand of motorcycle and colour television in dowry. Furthermore, P.W.10 stated that the appellant used to torture and harass his daughter due to non fulfilment of his demand of dowry. It is the case of prosecution that dead body of appellant’s wife was recovered but the appellant has challenged the identity of dead body of his wife and, therefore, it was upon the prosecution to prove this fact that the recovered dead body was wife of appellant and furthermore, the prosecution has to prove that the wife of appellant was died in other than normal circumstances within seven years of her marriage.

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P.W.10 has admitted at para 5 of his examination in chief that after three or four days of the marriage, he went to the house of appellant and brought back to his daughter at his home and since then his daughter was residing in his house till the institution of this case. He also admitted at para 6 of his examination in chief that after one month of the marriage, the appellant started visiting his house after intervals of ten to fifteen days and on 01.07.1995 he took his daughter on pretext to watch a movie at Bhagalpur.

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P.W.4 the mother in law of appellant also admitted

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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this fact that when her daughter came to her house, the appellant used to visit her house twice in a week and on 01.07.1995, the appellant took her daughter on pretext of watching a movie at Bhagalpur. She admitted at para 3 of her examination in chief that on 01.07.1995 when appellant gave a proposal before her for taking away his wife to watch a movie, she went to the house of her brother and took advice from him who advised her to permit the appellant to take his wife for watching movie and after that she permitted the appellant to take her daughter for watching the movie. The P.W.10 claimed in his deposition that when the appellant gave the aforesaid proposal he was also present in his house but P.W. 4 has, nowhere, stated about the presence of P.W. 10. Moreover, it is very surprising that P.W.4 went to take advice from his brother even her husband (P.W.10) was present in the house at the time of aforesaid proposal and, therefore, the presence of P.W.10 in his house on 01.07.1995 appears to be doubtful.

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In Exhibit-4, it has not been stated by P.W.10 that on 01.07.1995, appellant had assured him as well as his other family members that if he would not be able to return back in the night, he would be back after two or three days but when P.W.10 was examined before the trial court, he stated the above stated fact and, therefore, it appears that aforesaid fact is nothing but only a development and

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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embellishment in course of trial because P.W.10 has stated in Exhibit4, only to this extent that the appellant came at his home and took his daughter on pretext to watch a movie. Furthermore, P.W.10 has admitted in Exhibit-4 as well as in his deposition that second marriage of his daughter had not been solemnized and according to prosecution case, his daughter left his home on 01.07.1995 and did not return till 05.07.1995 but admittedly, he did not take any step between the aforesaid period to trace her daughter out and lastly, he claimed that he sent his brother in law, Ranjan Kumar (P.W.7) on 05.07.1995 to the house of the appellant. Therefore, the aforesaid circumstance indicates that the appellant got information about the missing of his wife in the night between 05.07.1995 to 06.07.1995 from Ranjan Kumar and admittedly, having got the aforesaid information the appellant along with his other family members came to the house of the P.W. 10 from where he was arrested by the police. Therefore, the aforesaid circumstance indicates that the appellant was very anxious about the missing of his wife whereas P.W.10 as well as his other family members kept mum about the missing of wife of the appellant for a considerable period of time which creates doubt about the conduct of P.W.10 as well as his other family members.

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In Exhibit-4, P.W.10 stated that his son in law used to torture and assault his daughter and the appellant also used to

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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pressurize his daughter to demand a motorcycle and colour television from her father. In Exhibit-4, P.W.10 has, nowhere, stated that the above stated demand was made by the appellant from him before the marriage, at the time of marriage or after the marriage. Admittedly, P.W.10 gave the aforesaid Exhibit-4 after four days of recovery of dead body and the aforesaid Exhibit-4 was written by another person on the dictation of P.W.10 and, therefore, it is clear that P.W.4 had opportunity to disclose all the relevant facts in his written report but he made a vague statement in respect of demand of dowry.

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Although, P.W.4, P.W.5 and P.W.7 have also supported the fact of aforesaid demand in their depositions but P.W.4, herself, admitted in her examination in chief that after marriage, the aforesaid demand was made by the appellant and his other family members at their house and, therefore, admittedly, the aforesaid demand was not made in presence of P.W.4. Further P.W.4 stated that at the time of marriage, the demand of motorcycle and colour television was made but the aforesaid statement is vague and general because she has not stated who had made the aforesaid demand. She further stated that appellant used to come her house and used to pressurize his wife to make demand of motorcycle and colour television from her father. Therefore, the aforesaid statement reveals that the foresaid demand was made by the appellant from his wife and

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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P.W.4 has, nowhere, stated in her deposition that her daughter communicated to her about the aforesaid demand and, therefore, I am of the opinion that this witness is not a competent witness on the point of aforesaid illegal demand.

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P.W.5 is full brother of P.W. 4. This witness stated that at the time of marriage, the appellant had made demand of television and motorcycle but in course of investigation, this witness has not made the aforesaid statement before the police. Although, this witness claimed to have made the aforesaid statement before the police at para 14 of his cross examination but P.W. 11, specifically, stated at para 4 of his cross examination that P.W. 5 had not made the aforesaid statement before the police. Similarly, this witness stated that when he along with P.W. 7 and other went to take Bidai of appellant’s wife, the wife of appellant stated that she might be killed by the appellant but again attention of this witness was drawn to his statement recorded under Section 161 of the Cr.P.C. and this witness stated that he had made the aforesaid statement before the police but P.W. 11, specifically, stated that this witness had not stated before him in course of investigation that appellant’s wife had expressed her apprehension of killing at the hands of appellant and other accused persons and, therefore, it is not safe to place reliance upon the deposition of this witness, particularly, in respect of fact of demand of

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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motorcycle and colour television. Similarly, P.W. 7, another brother of P.W. 4, stated that at the time of marriage appellant had demanded one motorcycle and colour television and when he along with his brother and other persons went to the house of appellant to take back the appellant’s wife, the appellant and his other family members demanded colour television and motorcycle in dowry. This witness admitted at para 20 of his deposition that appellant had not made any demand from him. The attention of this witness was drawn towards this fact that he had not made statement before the police to this effect that appellant and his other family members had demanded colour television and motorcycle in his presence. Although, this witness stated to have made the aforesaid statement but P.W. 11, specifically, stated that this witness had not made the aforesaid statement before him in course of investigation. Therefore, it is clear from the aforesaid facts that this witness is also not a competent witness on the point of demand and it appears that he developed his statement in course of trial.

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On perusal of the evidence of aforesaid witnesses, it is explicit clear that only a vague and general statement has been made by almost all the witnesses and no cogent and reliable evidence has been produced by the prosecution to support the aforesaid demand.

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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P.W. 4 and P.W. 10 admitted in their deposition that

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the appellant used to visit at their house frequently. The attention of P.W. 4 was drawn towards her statement recorded under Section 161 of the Cr.P.C. and she stated that she had not made statement before the police that the relation of her daughter was cordial with appellant but when the P.W. 11 was confronted on the aforesaid point, P.W. 11 admitted that the P.W. 4 had stated before him in course of investigation that appellant and his wife were leading cordial and happy married life. Therefore, the aforesaid fact indicates that relation of appellant with his wife was not strained and the prosecution could not succeed to prove this fact that P.W. 10’s daughter was subjected to cruelty and harassment by the appellant soon before the alleged occurrence or soon before her death.

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Therefore, on the basis of aforesaid discussions, I am of the opinion that prosecution failed to prove necessary ingredients of Section 304 B of the Indian Penal Code.

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According to P.W.10, he identified the dead body of his daughter after seeing her belongings as well as photograph of her dead body but admittedly, the belongings of the deceased as well as photograph of her dead body were neither produced before any Magistrate for Test Identification Parade in course of investigation nor before the trial court and, therefore, it appears to me that prosecution

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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could not succeed to prove this fact that recovered dead body was dead body of wife of the appellant.

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Admittedly, at the time of alleged occurrence, daughter of P.W. 10 was residing at the house of P.W. 10 and he stayed hardly three or four days at her in laws’ house. No doubt, in course of trial, prosecution witnesses stated that on 01.07.1995, appellant had come to the house of P.W. 10 and took away his wife on pretext to watch movie and he was seen by the witnesses taking away his wife and on the basis of aforesaid evidence, prosecution tried to prove this fact that prior to recovery of dead body, the appellant was found present along with his wife and on the basis of aforesaid circumstance, prosecution tried to establish this fact that appellant had access to commit the murder of his wife but it is surprising enough that the aforesaid circumstance was not put before the appellant while his statement under Section 313 of the Cr.P.C. was recorded and in my view, the appellant could not get an opportunity to explain the aforesaid circumstance because no question regarding the aforesaid circumstance was put before him in course of recording his statement under Section 313 of the Cr.P.C. and a serious prejudice has been caused to the appellant on account of non putting of the aforesaid fact before him. Therefore, the aforesaid circumstance cannot be read in evidence against the appellant.

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Patna High Court CR. APP (SJ) No.84 of 2001 dt.02-05-2013

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On the basis of aforesaid discussions, I am of the opinion that prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and appellant is entitled to be acquitted of the charges framed against him. Accordingly, this criminal appeal is allowed and impugned judgment of conviction dated 03.02.2001 and order of sentence dated 05.02.2001 are, hereby, set aside. The appellant is on bail. He is discharged from the liabilities of his bail bonds.

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(Hemant Kumar Srivastava, J)

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SHAHZAD/A.F.R.

Dinesh Mandal v. the State of Bihar

Case brief

What is this about?

What did the court decide?

Dinesh Mandal v. the State of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

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