Rakesh Kumar vs State Of Haryana

Rakesh Kumar ...Appellant

Vs.

State of Haryana ...Respondent

JUDGMENT

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.

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.

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

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.

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.

5 ....................................J. (Dr. ARIJIT PASAYAT)

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

New Delhi:

March 06, 2009

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