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SUPREME COURT OF INDIA
Vikramajit Sen, Prafulla C. Pant, JJ.
Harish Kumar – Appellant
Versus
State of Haryana – Respondent
CRIMINAL APPEAL NO. 1297 OF 2011
Decided On : 16-12-2014
(b) Indian Penal Code, 1860 – Section 304B r/w section 113B, Indian Evidence Act, 1872 – Death under other than normal circumstances within seven years of marriage – Harassment or cruelty soon before death in connection with demand of dowry – Presumption of guilt against husband or relatives – Presumption rebuttable – Onus shifts to accused – Instantly appellant discharging his burden – Rebutted the presumption by relying upon voluntary and truthful dying declaration – Conviction u/s 304B bad – Set aside. (Para 16, 25)
© Indian evidence Act, 1872 – Section 32 – Dying declaration recorded by Nayab tehsildar in presence of Medical officer certifying mental fitness of deceased to record statement – Statement voluntary and truthful – Courts below not relying thereon – Conviction u/s 304B not justified. (Para 20, 21, 23, 25)
(2012) 12 SCC 120; (2004) 10 SCC 769 – Relied upon
Facts of the case:
Appellant HarishHe was convicted by the Additional Sessions Judge, Hisar in Sessions Case No. 1 of 1994 under Sections 304B and 498A IPC, and sentenced to rigorous imprisonment for seven years.
Appeal thereagainst was dismissed.
Finding of the Court:
Appellant rightly convicted under Section 498A IPC. Not punishable under Section 304B IPC.
Result: Appeal partly allowed.
JUDGMENT
PRAFULLA C. PANT, J.
This appeal is directed against judgment and order dated 7.12.2010, passed by the High Court of Punjab and Haryana in Criminal Appeal No. 310-SB of 2001 whereby the High Court has dismissed the appeal of the appellant Harish Kumar. He was convicted by the Additional Sessions Judge, Hisar in Sessions Case No. 1 of 1994 under Sections 304B and 498A IPC, and sentenced to rigorous imprisonment for seven years.
2. We have heard learned counsel for the parties at length and perused the record of the case.
3. Brief facts of the present case are that accused Harish Kumar got married with Manisha (deceased) on 14.1.1992. The couple was blessed with a son in the month of November, 1992. They used to live in Hansi in the district of Hisar, Haryana. On 13.9.1993 at about 10.30 p.m., Manisha suffered burn injuries, and she was immediately taken by her husband Harish Kumar (appellant) to Civil/General Hospital where she was admitted at 11.00 p.m., i.e., within half an hour of the incident. PW-1 Dr. M.L. Kalra, Medical Officer of said hospital, who admitted the patient, recorded following medico legal injuries:
“Superficial burn injuries on anterior part of neck, most part of trunk, right side of back, both buttock, both thighs, including knees, right foot, most of left upper limb total area of burn 50-60%”.
In the opinion of the Medical Officer (PW-1), nature of injuries was dangerous to life, probable duration of injuries within 36 hours. In the column -History/outdoor -
“accidental burn injuries” were mentioned in the medico legal report (Copy Annexure P-1). The Medical Officer sent a memo (Ruqa) Ext. PB to Police Station. On next day, i.e., 14.9.1993, a dying declaration (Copy Annexure P-2) was recorded by Baru Ram, Naib Tehsildar (DW-2) in the presence of Dr. Surender Singh (DW-1 ) of the Civil/General Hospital, Hansi.
4. In her dying declaration recorded on 14.9.1993 by the Naib Tehsildar in the presence of the Medical Officer, the deceased made a statement of which English translation reads as under: –
“My marriage was performed with Harish about two years back, and there is a son aged 9 months from the wedlock. There is no quarrel between us. In the night of 13.9.1993 at about 10.30 p.m., all of a sudden, there was failure of power. I went to the room as I wanted to lit the lamp by striking the match stick. I had to take out milk to feed my child. The match box was not in good condition. I had to strike match sticks 3-4 times, and one of it fell on my maxi, which I was wearing at the time. It caught fire from the side of bottom. I tried to douse it. But it kept on spreading. On this I called my husband Harish, who put a blanket on me, and also poured 2-3 matkas of water on me. Then he went out, and on finding a scooter, my husband took me to hospital. No one has set the fire or ablazed, and it was accidental.”
(Emphasis supplied)
At the bottom of the above statement Dr. Surender Singh DW-1 certified that Manisha Bhatia (deceased) gave the statement in his presence and he remained present throughout the course of statement, and the patient was fit to give the statement. From Annexure P-2 it reveals that it was recorded at 10.45 a.m. on 14.9.1993, and Manisha put her thumb impression under it. It was also mentioned in Annexure P-2 by PW-13 Sub Inspector Ami Chand, who was posted at Police Station, City Hansi, that the police received a memo (Ruqa) from the Medical Officer of the hospital, but when in the night Constable Patak Singh went there, the patient was not in a fit condition to make the statement at that point of time. It is further endorsed by PW-13 that on 14.9.1993 on the instruction of Tehsildar the dying declaration was got recorded at the hands of Naib Tehsildar (DW-2), after taking the opinion from the Medical Officer (DW1). It is further mentioned at the end of the endorsement by PW-13 that it appears that on striking of a match stick in the night to lit the lamp, it fell and the maxi caught
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