LexSUBHASH versus SLATE OF HARYANA
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[2010] 14 (ADDL.) S.C.R. 1067 SUBHASH V. Sl'ATE OF HARYANA (Criminal Appeal No. 184 of 2006) DECEMBER 16, 2010 [HARJIT SINGH BEDI AND CHANDRAMAULI KR. PRASAD, JJ.] A B Penal Code, 1860 - ss. 306 and 498A -Death of married woman due to 70% burn injuries - Dying declaration recorded C by Magistrate to the effect that the victim suffered harassment on account dowry demands and as a result she made an attempt to commit suicide - Conviction of husband and father-in-law by courts below u/ss. 306 and 498A - On appeal, held: Dying declaration recorded by Magistrate not reliable D - In the statements uls. 161 Cr.P.C., fatherand brother of the victim omitted to state as regards the oral dying declarations made to them by the victim, thus, their statements does not inspire confidence - Dying declaration recorded was planned at the instance of the brother of the victim - Possibility that E victim was burnt in an accident cannot be ruled out - Thus, conviction of appellant set aside - Code of Criminal Procedure, 1973 - ss. 161 and 162 - Crime against women - Evidence - Dying declaration. F According to the prosecution case, the victim was repeatedly harassed by the appellant-husband, her parents-in-law and other in-laws for not bringing sufficient dowry and raised dowry demands. On the fateful day, the victim suffered 70% burn injuries and later succumbed to her injuries in the hospital. The doctor G recorded the statement of the victim which was attested by the Sub-Inspector. PW 13, the SOM, recorded the dying declaration of the victim that she made an attempt to commit suicide on account of the harassment meted 1067 H 1068 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R. A out to her. The trial court on basis of the evidence of the relatives of the victim, the doctors, the Sub Inspector, the dying declaration recorded by PW 13 and the oral declaration mad& to PW 10, the brother of the victim, convicted the appellant and his father for the offences s punishable under Sections 306 and 498A IPC and sentenced them to rigorous imprisonment for five years. The High Court upheld the conviction of both appellant and his father but while doing so, reduced the sentence of the appellant's father to that already undergone by him. c Therefore, the appellant filed the instant appeal. Allowing the appeal, the Court HELD: 1.1 The primary evidence against the appellant is the dying declaration recorded by PW13 - o SOM. It appears that information about victim's admission in the Hospital was received in the police station at about 3.05 p.m. on 27.10.1985 but her statement could not be recorded as she was unconscious at that time. The Sub:.. Inspector made efforts to record her statement at 8.30 E p.m. but the same could not be recorded for the same reason. It appears that, thereafter, the victim's statement was recorded by the doctor and attested by ASI on 27.10.1985 in which she stated that she was burnt in an accident. Therefore, it is evident that the investigating F agency made repeated efforts to record her dying declaration, but there was some delay because of the incapacity of the victim. The dying declaration was recorded by PW-13 on 28.10.1985 after an application was moved before him by PW-10, brother of the victim. PW 13-SDM, when cross-examined in court, stated that G on 28.10.1985 he was present at his residence when the application was presented to him on which he went to the Hospital and recorded the dying declaration after the doctor certified the victim's fitness to make a statement. He also stated that a copy of the statement was handed H SUBHASH v. STATE OF HARYANA 106CJ over to the police on 30.10.1985. However, he admitted A that the application was not produced by him before the investigating agency and he was tendering this document for the first time during his evidence in court and that there was no noting on the dying declaration that he had gone to the hospital on the application or that a B copy of the dying declaration was handed over the police on 30.10.1985. He also admitted that he did not obtain any opinion in writing from the doctor about the victim's fitness to make a statement. He further admitted that the area of the Hospital did not fall within his jurisdiction but c clarified that it was the practice that a dying declaration could be recorded by any Magistrate when the Magistrate of the area concerned was not availa
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