Kumar Vs. State of Haryana  INSC 508 (6 March 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 446
OF 2009 (Arising out of SLP (Crl.) No. 5046 of 2008) Rakesh Kumar ...Appellant
State of Haryana ...Respondent
ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of a learned Single
Judge of the Punjab and Haryana High Court. Two appeals were disposed of by a
common judgment. While the appeal filed by the appellant i.e. Criminal Appeal
No.605-SB of 1996 was dismissed, the appeal i.e. Criminal Appeal No.542-SB of
1996 filed by the co-accused persons was allowed. The appellants before the
High Court were convicted and sentenced to undergo rigorous imprisonment for
various terms and fine for alleged commission of offences punishable under
Sections 304-B and 498-A of the Indian Penal Code, 1860 (in short the `IPC').
Allegation was that Kusum Lata who was daughter of Om Prakash (PW-2) and was
married to the present appellant on 19.4.1988 had received severe burns in an
accident which took place on 21.9.1991 in the matrimonial home at Ambala City.
On 24.9.1991 she succumbed to the injuries in the Post Graduate Institute of
Medical Education and Research, Chandigarh (in short the `PGI'). The deceased
was taken to the Civil Hospital, Ambala after the incident from where a ruqa
was received by the police on the basis of which D.D.R. was recorded. The
police tried to record the statement of the deceased, but she was found to be
not totally fit. As her condition was critical she was removed to PGI Hospital
for treatment. On 22.2.1991 a dying declaration Exh. DA/4 was recorded by
Executive Magistrate, Chandigarh. The police on the basis of the dying
declaration prepared a cancellation report. However, on the basis of grievance
made by Om Prakash (PW-2) a First Information Report was registered on
17.10.1991. After completion of investigation, charge sheet was filed and since
the accused persons pleaded innocence, trial was held.
2 On the
basis of the statement of Om Prakash (PW-2) an application was made by the
prosecution under Section 319 of the Code of Criminal Procedure, 1973 (in short
the `Code') for summoning the accused persons.
Court by order dated 8.4.1994 accepted the application and accused Ramesh
Kumar, Pardeep Kumar, Poonam, Sita Rani and Om Parkash who were appellants in
connected Criminal Appeal were directed to face prosecution.
to establish the accusations the prosecution primarily relied on the evidence
of the complainant (PW-2) and the doctor who conducted post mortem.
Additionally, certain letters purported to have been written by the deceased
were brought on record vide Exhs. PC and PC/1. In the statements recorded under
Section 313 the accused persons pleaded innocence. In defence the accused
persons examined six witnesses including the Executive Magistrate, Chandigarh,
neighbours and certain other persons.
Court came to hold that the appellants were guilty of the charged offences. In
appeal it was noted that though the matters were listed 3 for hearing none
appeared for the appellant and, therefore, an advocate was appointed as Amicus
Curiae. The High Court held that the accusations were established so far as the
present appellant is concerned while directing acquittal of the co-accused
persons. The High Court noted that the investigation was somewhat lethargic and
an attempt was made to screen the truth. Therefore, placing reliance solely on
the evidence of PW-2 the complainant and certain letters purported to have been
written by the deceased, the appellant's conviction is in order.
In support of the appeal, learned counsel for the appellant
submitted that the evidentiary value of the dying declaration Ext.DA/4 has been
lost sight of. Additionally the letters were conclusively established to have
not been written by the deceased. Interestingly, the FIR was lodged after about
Learned counsel for the respondent-State on the other hand supported
the judgment of the High Court and submitted that since the investigation was
not fair the accused cannot take advantage of any lapse of the investigating
It is true as contended by learned counsel for the State that
shoddy investigation cannot be a foundation for the accused persons to take
advantage of shoddiness. But in the instant case, there was no material brought
on record by the prosecution to establish the accusations so far as the present
appellant is concerned. It is to be noted that there was a dying declaration
recorded by the Executive Magistrate, Chandigarh who was present at PGI
hospital. The authenticity of the dying declaration has not been questioned. It
is the stand of the prosecution that police officer should have recorded it.
But that cannot be a ground to discard the dying declaration recorded by the
Executive Magistrate. Additionally, the prosecution laid great emphasis on the
letters purported to have been written by the deceased to her relatives. Here
again, handwriting expert's report clearly shows that the letters were not in
the handwriting of the deceased.
Above being the position, there is no evidence brought on record
by the prosecution to establish the accusations. That being so, the appeal
deserves to be allowed which we direct. The conviction of the appellant is set
aside. The appellant be released from custody forthwith unless required to be
in custody in connection with any other case.
....................................J. (Dr. ARIJIT PASAYAT)
.....................................J. (ASOK KUMAR GANGULY)
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