Nanhar & Ors vs State Of Haryana

2. It may be mentioned herein that initially charge-sheet was filed only against four accused namely Nanhar, Virender @ Binder, Rampat and Rajbir @ Meda under Sections 306/34 IPC. The name of the fifth accused Umed Singh was added subsequently by the Trial Court on an application being filed by the prosecution under Section 319 of the Code of Criminal Procedure and allowed on 3.6.2004. The order of committal makes it clear that the first four appellants were charged and prosecuted for commission of offence under Sections 306/34 IPC. Accordingly it was committed to Court of Sessions for being tried for the aforesaid offences. However, on 5.10.2004 charge was framed by the learned Trial Judge under Sections 302/34 IPC. Even though Umed Singh was added subsequently as one of the accused but the charge was not altered 3 to one under Section 149 of the I.P.C.

3. Thumbnail sketch of the facts of the case is as under:

5. On 24/2/2004 PW.7 Sudesh, cousin of deceased Vijay informed PW.9 Kartar Singh, on telephone that Vijay has been murdered and his dead body was lying 5 in his field. It was further informed that some poisonous substance was administered to Vijay by accused Nanhar, Virender and Rajvir and Rampat. He was asked to reach Malkosh from Rewari immediately. On the same night, Kartar Singh reached village Malkosh and found his brother dead. On enquiries being made by him it was found from the villagers that he has been done away with by administering poisonous substance to him by aforesaid persons. This fact stood fortified from a small note said to be Vijay's dying declaration, written on the inside paper of the match box, recovered from the pocket of his pants. In the same, name of Meda Panch was also mentioned that they had mixed sulphas in the drink which was administered to him and it is likely to take away his life.

6. The said two pages written complaint dated 27.2.2004 was submitted by Kartar Singh to Superintendent of Police, Bhiwani. A note was endorsed by the Superintendent of Police to Deputy Superintendent of Police to look into the matter and do the needful. DSP sent it to SHO of Police Station Bhond Kalan, who was directed to 6 investigate the matter, in accordance with law. The said written complaint was treated as an F.I.R. and formal FIR came to be registered on 6/3/2004, that is to say almost after 11 days from the date of occurrence of the incident.

7. It is pertinent to mention here that on 24.2.2004, PW.11 Dalip while proceeding to lodge the report had met ASI Raj Kumar (reported to be dead) at the bus stop of Malkosh and had orally informed him about the incident. His statement to the police was entered into Daily Diary (Rojnamcha) by Sub-Inspector Raj Kumar at the Police Station.

(vii) As per the post-mortem report performed on 25.2.2004, the death had occurred within 36 hours from the time of performing of the post-mortem, meaning thereby that the incident must have taken place some time in the night.

It is pertinent to mention here that PW-7 Sudesh and PW-11 Dalip are the witnesses to the recovery memo said to have been prepared by ASI Raj Kumar who is said to have died during the pendency of the sessions trial, also does not record its recovery.

(xxii) The said dying declaration does not 18 inspire confidence, much less to hold the appellants guilty for commission of the said offence.

25. In fact, the salient features noted above with regard to the deficiencies are sufficient, in our considered opinion, to come to the conclusion that the Courts below committed grave error in holding the appellants guilty for commission of offence under Sections 302/149 of the I.P.C.

28. No doubt it is true that ASI Raj Kumar, who had prepared the Inquest Report had died during the pendency of the trial, but no reasons have been assigned as to why other police personnel present along with ASI Raj Kumar, were not examined. They could have at least explained the true picture and proved recovery of dying declaration and pocket telephone index diary from possession of deceased Vijay.

PG can fall in the category of dying declaration at all or can be said to be legally admissible. Even though we have categorically, minutely and with microscopic eyes gone through the said document number of times, but it does not inspire confidence, more so, the manner in which it has been written. We have already mentioned hereinabove that after having consumed excessive liquor, it would not have been possible for any one, much less for Vijay, to have written the said dying declaration with so much of precision or with steady hand. In our considered opinion, dying declaration should be such,which should immensely strike to be genuine and stating 24 true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. It should not be the result of tutoring. But dying declaration in the present case does not fulfill these conditions.

32. In HWV Cox Medical Jurisprudence and Toxicology, Seventh Edition, at page 936, under title "Alcohols", deals with handwriting after consumption of liquor. While coming to the general behaviour after excessive drinking, apart from other things, it has specifically been noted: "Character of hand-writing: There is often difficulty with letters, N, M and W."

33. In the same book, it is further described that blood reaches all the organs, mainly the brain and interferes with normal brain functions like judgment and coordination of muscular movements. The blood alcohol level influences the behaviour of the person. The amount of alcohol present in the stomach and intestine has no effect but only indicates the 25 ingestion.

34. Obviously, it would go to show and we also come to the conclusion that after going through the handwriting, as has been found by us in the alleged dying declaration Ext. PG, it would have been extremely difficult for him to write it as he could not have been in a mentally fit condition to have written the same.

36. In our considered opinion, the said judgment and order of conviction passed by the Trial Court and upheld by the High Court, cannot be sustained in law. They are accordingly set aside and quashed. As a necessary consequence thereof, the appellants would be set at liberty forthwith, if not required in connection with any other criminal case. 26

Both the appeals are allowed accordingly.

....................J (DEEPAK VERMA) ....................J (K.S. RADHAKRISHNAN) New Delhi;

June 11, 2010.