Supreme Court - Daily Orders
Gurdip Singh vs State Of Punjab on 30 October, 2014
Bench: Dipak Misra, Uday Umesh Lalit
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.324 OF 2009
Gurdip Singh Appellant(s)
Versus
State of Punjab Respondent(s)
O R D E R
The present appeal is directed against the judgement of conviction and order of sentence dated 9th May, 2008, passed by the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal No.556-DBA of 1997, whereby the Division Bench of the High Court has converted the judgement of acquittal of the appellant recorded by the learned Sessions Judge, Kapurthala, in Sessions Case No.26 of 1995 instituted for offences punishable under Sections 302/498A/34 of Indian Penal Code (for short 'IPC') on the allegation that on 30th March, 1995, the mother in-law and sister in-law had a quarrel with the deceased, namely, Sukhjinder Kaur, the wife of the present appellant, Gurdip Singh, and the cavil Signature Not Verified continued till the arrival of the husband and after he came Digitally signed by Chetan Kumar Date: 2014.11.01 12:40:30 IST in a drunken state, he burnt the wife by putting kerosene Reason: oil on her.
2The appellant was sent up for trial along with Piar Kaur and Satpal Kaur, the mother in-law and sister in-law respectively and the learned trial Judge appreciating the evidence on record came to hold that the prosecution had not been able to bring home the charges levelled against him, inasmuch as there was no demand of dowry; that the material on record clearly proved the fact that the husband had tried to save the life of the wife as a consequence of which he had sustained injuries; and that the dying declaration, which was the fulcrum of the prosecution case, could not be given credence to for recording a conviction. Being of this view, he acquitted all the accused persons of the charges.
The said judgement of acquittal was challenged by the State against all the accused persons. The High Court by the impugned judgement dated 9th May, 2008, affirmed the acquittal recorded by the learned trial Judge as far as the mother in-law and sister in-law are concerned, but reversed the acquittal as far as the present appellant is concerned.
Criticizing the judgement of conviction recorded by the High Court, it is submitted by Mr. Chanan Singh, learned counsel appearing for the appellant that the view expressed by the learned trial Judge was absolutely a plausible one on the basis of evidence brought on record and there was no justification on the part of the High Court to reverse the same. Learned counsel would submit that the facets which have been taken into consideration by the learned trial 3 Judge, have been brushed aside by the appellate court without ascribing any reasons and, therefore, the judgement of reversal is unsustainable in law. It is his further submission that the dying declaration which has formed the sole basis for conviction, as is manifest from the judgement of the High Court, cannot form the foundation as there are so many infirmities in the dying declaration.
Mr. Jayant K. Sud, learned Additional Advocate General appearing for the State of Punjab, has supported the judgement and order passed by the High Court.
To appreciate the submissions advanced by the learned counsel for the parties, we have bestowed our anxious consideration and perused the judgement of the trial Court and that of the High Court. The learned trial Judge has taken into consideration the fact that there was no material to sustain the charge of demand of dowry. It had also taken note of the fact that the appellant-husband had brought the injured-wife to the hospital and the doctor, Dr. Balbir Singh, DW-4, who had examined the appellant on the orders passed by the Judicial Magistrate, First Class, Kapurthala, for he was in custody and found the following injuries on his body:
“1) Dull reddish brown area 9 cm x 3 cm present upper posterior aspect of right upper arm, the upper part having peeling off the layer of skin.
2) Complaining of burning sensation on front of neck.4
3) The front and palmer aspect of tip of left middle finger having blister in an area of 1 cm x 5 cm with red line of demarcation.
It was hard.
4) The front and palmer aspect of tip of left ring finger in an area of 1.5 cm x .5 cm with red line of demarcation and it was had.
5) The kuncle of left ring finger having superficial burnt skin in an area of 1 cm x . 5 cm which was dark brown.
6) The base of right little finger having superficial burn brownish colour in an area 1 cm x 1 cm.
7) The first inter pharyngeal joint of right middle finger dorsally having blister 1 cm x .2 cm with brownish colour.
8) The palmer aspect of right middle finger having blister with dried skin in an area of 1 cm x .7 cm. It was brownish in colour with red line of demarcation.
9) The skin superficially in an area of 6 cm x 5.5 cm was loose, whitish upper part in an area of 2 cm x 3 cm peeled off with reddish area with small multiple blister were present on left knee joint, whole skin could easily be removed.
10) The skin in an area of 6 cm x 3 cm just above the knee joint left side was burnt brown blackish in colour.
11) The tip of 2nd great toe of right foot having blister .5 cm x .5 cm with hard skin.” The learned trial Judge further opined that the prosecution had not elicited anything in the cross- examination of DW-4, that such injuries were not sustained by the husband. That apart, he has also taken note of the 5 fact that there was amicable relationship between the husband and wife inasmuch as there was a joint account in the bank and they were managing their finances together. The learned trial Judge scanning the nature of recording of dying declaration, Exhibit-PC, opined that it was not reliable and credible on the basis of which a conviction could be recorded. The High Court, as we find, has based its view exclusively on the dying declaration. To satisfy ourselves, we have scrutinized the dying declaration in original and the testimony of the Executive Magistrate, PW-11. On a perusal of the dying declaration, it is manifest that there is no endorsement that the Executive Magistrate had read over and explained the dying declaration to the injured and that it was admitted to be true and correct. That apart, he has also admitted in his evidence that he had not written the dying declaration, but had dictated to his stenographer. He has also not certified that the stenographer had reproduced what he had dictated; and that there is no certification in that regard.
On a careful scrutiny, it appears that there is vagueness in the dying declaration as far as the complicity of the husband is concerned in pouring kerosene oil. Judged from all the angles, we are of the considered opinion that in the present case, the dying declaration cannot be placed reliance upon to base the conviction in the absence of any other evidence on record.
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In the result, we are unable to sustain the judgement of conviction recorded by the High Court and, accordingly, we set aside the same and restore the judgement of acquittal passed by the learned trial Judge. As the appellant is in custody, he be released forthwith unless his detention is required in connection with any other case.
The appeal is, accordingly, allowed.
......................J. (Dipak Misra) ......................J. (Uday Umesh Lalit) New Delhi;
October 30, 2014.
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ITEM NO.102 COURT NO.5 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No.324 of 2009
GURDIP SINGH Appellant(s)
VERSUS
STATE OF PUNJAB Respondent(s)
(With office report)
Date : 30/10/2014 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MR. JUSTICE UDAY UMESH LALIT For Appellant(s) Mr. Chanan Singh, Adv.
Mr. Satyapal Khushal Chand Pasi, AOR For Respondent(s) Mr. Jayant K. Sud, AAG Mr. Ajay P. Tushir, Adv.
Mr. Kuldip Singh, AOR UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed order.
(Chetan Kumar) (Renuka Sadana)
Court Master Court Master
(Signed order is placed on the file)