REPORTABLE

IN THE 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

Vs.

State of Haryana  ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. 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.

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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.

The  trial  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.  

In order 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.  

The trial  Court  came to hold that the appellants  were guilty of the

charged offences. In appeal it was noted that though the matters were listed

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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.  

3. 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

26 days.  

4. 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 agency.  

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5. 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.  

6. 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.     

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…….………………………..J. (Dr. ARIJIT PASAYAT)

…..…………………………..J. (ASOK KUMAR GANGULY)

New Delhi: March 06, 2009  

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