Supreme Court of India
RAKESH KUMARversusSTATE OF HARYANA
- Citation
- 2009 INSC 335
- Decided
- 6 March 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The conviction cannot be sustained where the only evidence is a duly recorded dying declaration and forged letters, as the prosecution failed to prove the charge beyond reasonable doubt.
Summary
Kusum Lata died from severe burns and her husband Rakesh Kumar was convicted under IPC sections 304‑8 and 498‑A based on the testimony of her father and letters allegedly written by the deceased. The prosecution also relied on a dying declaration recorded by an Executive Magistrate, while the police failed to record it themselves. The High Court upheld the conviction despite noting a lethargic investigation and forged letters. On appeal, the Supreme Court held that the dying declaration, properly recorded, is admissible and that the letters were conclusively shown not to be the deceased's handwriting, leaving the prosecution with no other substantive evidence. Consequently, the conviction was set aside and the appellant was ordered to be released.
Issues considered
- Whether a dying declaration recorded by an Executive Magistrate is admissible despite the police not recording it.
- Whether letters purportedly written by the deceased, later proved not to be in her handwriting, can be relied upon as evidence.
- Whether the delay in lodging the FIR affects the validity of the conviction.
- Whether a shoddy investigation can be a basis to sustain a conviction.
Legislation cited
- Code of Criminal Procedures. 319
- Indian Penal Code, 1860s. 304-8, s. 498-A
Subjects
dying declarationforgeryevidenceshoddy investigationIPC 304-8IPC 498-AFIR delaycriminal conviction
Judgment
[2009] 3 S.C.R. 1190
,, --
.
A RAKESH KUMAR
v.
STATE OF HARYANA
(Criminal Appeal No. 446 of 2009)
MARCH 6, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
Penal Code, 1860 - ss. 304-8 and 498-A - Conviction
c by Courts below - On the basis of evidence of complainant
and letters written by the deceased - Held : Conviction was
in disregard of dying declaration recorded by Executive
Magistrate, and on the basis of letters which were conclusively
established not written by the deceased - Therefore, not
D sustainable.
Appellant-accused was convicted ulss. 304-8 and
498-A IPC by trial court alongwith co-accused. High Court
affirmed his conviction, while setting aside those of the
co-accused. It observed that investigation was lethargic
E
and an attempt was made to screen the truth.
~
In appeal to this Court appellant-accused contended
that courts below lost sight of evidentiary value of dying
declaration; that letters relied on were conclusively
F established to have not been written by the deceased;
and that there was delay of 26 days in lodging FIR.
Allowing the appeal, the Court
HELD: It is correct that shoddy investigation cannot
G 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. There was a dying declaration recorded by
H 1190
RAKESH KUMAR v. STATE OF HARYANA 1191
....,,.
• the Executive Magistrate, who was present at the hospital. A
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 B
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 c
the prosecution to establish the accusations. [Paras 5
and 6] (1193-G, H; 1194-A, B]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 446 of 2009.
' D
From the Judgment and Order dated 15.2.07 passed by
High Court of Punjab & Harayna, at Chandigarh in Criminal
Appeal No. 605 of 1996.
K.V. Viswanathan, H.P. Sahu Abhisth Kumar for the
E
Appellants.
Manjit Singh, T.V. George for the Respondent.
• The Judgment of the Court was delivered by
F
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 G
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 vario.us
terms and fine for alleged commission of offences punishable H
\
1192 SUPREME COURT REPORTS [2009] 3 S.C.R.
A under Sections 304-8 and 498-A of the Indian Penal Code,
18El0 (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
B 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 pol.ice on the basis of which D.D.R.
c 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
D
r~port. 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.
E
On the basis of the statement of Om Prakash (PW-2) an
application was made by the prosecution undH Section 319
of the Code of Criminal Procedure, 1973 (in short the 'Code')
for summoning the accused persons. The trial Court by order
F 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
~irected to face prosecution.
In order to establish the accusations the prosecution
G
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
H
,_
RAKESH KUMAR v. STATE OF HARYANA 1193
[DR. ARIJIT PASAYAT, J.]
" innocence. In defence the accused persons examined six A
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
8
matters were listed 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 c
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
l appellant's conviction is in order.
~
D
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 E
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.
/
F
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 G
, 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 H
1194 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 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
B 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.
C 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.
K.K.T. Appeal allowed.
I
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