LexHARISH KUMAR versus STATE OF HARYANA
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A B [2014] 13 S.C.R. 1298 HARISH KUMAR v. STATE OF HARYANA (Criminal Appeal No. 1297 of 2011) DECEMBER 16, 2014. [VIKRAMAJIT SEN AND PRAFULLA C. PANT, JJ.] Penal Code, 1860: s. 3048, 498-A - Dowry death - Death by burn injuries - Conviction of husband of victim- deceased - Defence relying on the dying declaration C recorded by DW-2, Naib Tehsildar in presence of DW-1, Medical Officer to the effect that burn injuries were accidental and no one responsible for same - Held: As regards cruelty on account of demand of dowry, there was sufficient evidence to establish the charge - However, defence was able to D discharge its onus to rebut the presumption u/s.1138 of Evidence Act in respect of s. 304-8 - The dying declaration was voluntary and truthful - DW-1 and DW-2 were not interested witnesses- Rather they were independent public witnesses who had discharged their duties after the police E approached DW-2, Tehsildar in response to memorandum (Ruqa) received from DW-1, Medical Officer - The dying declaration was voluntary and truthful - Conviction u!s.498-A is upheld while conviction u/s. 304-8 is set aside - Evidence Act, 1872 - s. 1138. F Partly allowing the appeal, the Court HELD: 1. As far as cruelty on account of demand of dowry was concerned, there is sufficient evidence adduced by PW 8 (father of deceased) and PW 9 (mother G of deceased) which was corroborated by PW 5 (neighbour) and PW 10 (grand father of the deceased) to establish the charge. As such charge under Section 498A IPC stood proved against accused. But the finding as to whether death of deceased was accidental or not, H required careful scrutiny particularly in view of the fact 1298 HARISH KUMAR v. STATE OF HARYANA 1299 that deceased gave dying declaration five days before A her death to the public servant in the presence of medical officer, after police requested Tehsildar for recording the same. [Para 17][1307-G-H; 1308-A-C] 2. Certain facts cannot be ignored in this case. Firstly, immediately after the incident, within half an hour 8 the husband took his wife to the hospital and got her admitted to Civil/General Hospital where medico legal examination was recorded by the doctor PW-1. The parents of the deceased were informed about the incident and they visited their injured daughter in the C hospital, as is apparent from the statements of PW-8 and PW-9. The deceased died five days after the incident. It also came on the record that PW-1 sent a memo (ruqa) to police, on which, as stated by PW-13 SI request was sent to Tehsildar for recording of dying declaration. PW- D 13 SI has stated that Tehsildar marked the request of the police to the Naib Tehsildar on which Naib Tehsildar on 14.9.1993 recorded the dying declaration. DW-1, Medical Officer of the hospital where the deceased was admitted, was present at the time of recording of dying declaration E and he made the endorsement that the patient was in a fit condition to make it. [Para 20)(1308-F-H; 1309-A-D) 3. DW-1 and DW-2 were not interested witnesses. Rather they were independent public witnesses who F have discharged their duties after the police approached Tehsildar in response to memorandum (Ruqa) received from PW-1. The dying declaration made by the deceased before Naib Tehsildar in the presence of Medical Officer was voluntary and truthful. The defence has discharged G its onus to rebut the presumption that could have been gathered under Section 1138 of the Indian Evidence Act, in respect of offence punishable under Section 304-B l.P.C. The conviction of the appellant under Section 498A H 1300 SUPREME COURT REPORTS [2014] 13 S.C.R. A IPC, is upheld and sentenced him to rigorous imprisonment for a period of three years, which he has already undergone, and set aside the conviction and sentence recorded against the appellant, in respect of the offence punishable under Section 3048 IPC. B [Paras 22, 23, 25](1310-E-G; 1311-0-G] c Surender Kumarv. State of Punjab (2012) 12 SCC 120 : 2012 (9) SCR 1019 ; Na/lam Veera Stayanandam and Ors. v. Public Prosecutor, High Court of A.P (2004) 1 o sec 769 - relied on. Smt. Shanti and Anr v. State of Haryana AIR 1991 SC 1226: 1990 (2) Suppl. SCR 675 - referred to. CASE LAW REFERENCE D 1990 (.2) Suppl. SCR 675 referred to. Para 11 2012 (9) SCR 1019 relied on. Para 23 (2004) 1 o sec 769 relied on. Para 24 E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No(s
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