Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1656 OF 2013
VIJAY MOHAN SINGH …APPELLANT
VERSUS
STATE OF KARNATAKA …RESPONDENT
J U D G M E N T
M.R. SHAH, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 08.02.2013 passed by the High Court
of Karnataka, Circuit Bench at Gulbarga in Criminal Appeal No.
402 of 2008, by which the High Court has allowed the said
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2019.04.10
16:22:36 IST
Reason:
appeal preferred by the State of Karnataka and quashed and set
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aside the judgment and order of acquittal dated 20.12.2007
passed by the learned Presiding Officer, Fast Track CourtIV,
Bidar (hereinafter referred to as the learned ‘trial Court’), by
which the learned trial Court acquitted original accused no.1 (the
appellant herein) for the offences punishable under Sections 302
read with 34, 498A, 304B read with 34 of the IPC, and Sections
3,4 & 6 of the Dowry Prohibition Act, 1961, and consequently
convicted original accused No.1 for the offence punishable under
Sections 302 of the IPC and sentenced him to undergo
imprisonment for life and also convicted the appellant herein
under Section 498A of the IPC and Section 4 of the Dowry
Prohibition Act, 1961, original accused No.1 has preferred the
present appeal.
2. The prosecution case in nutshell is as under:
That the marriage of the appellant with deceased Abhilasha
was celebrated on 11.12.2002 at Gurudwara Temple at Bidar. It
is alleged that before the marriage, the accused A1 to A3
demanded Rs.50,000/ and five tolas of gold as dowry from the
parents of the deceased, but it was agreed to give 6 tolas of gold
and domestic articles/utensils and accordingly marriage was
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performed. It is also alleged that after six months of the
marriage, all the accused started demanding additional dowry of
Rs.50,000/ for investing it as capital for the electric shop run by
original accused No.1 and by demanding so, A1 to A3 gave both
mental and physical cruelty to the deceased, despite the advice of
PWs 1, 2, 6 and 14 not to do so, but even then they continued it
and on 13.2.2005 at 3:15 p.m., they picked up a quarrel on the
ground that how the deceased did not bring the said cash of
Rs.50,000/. It is further alleged that with the intervention of the
neighbours the deceased and accused were separated and then
the deceased phoned to her parents at about 5:00 p.m. It is
further alleged that at that time A1(the appellant herein) asked
the deceased how and why she phoned to her parents and by
saying so he is going to murder her and then A1(the appellant
herein) poured kerosene on the deceased and lit fire and ran
away from the spot. That the deceased sustained grievous burnt
injuries and it is the neighbours who shifted her to the
Government Hospital at Bidar and thereafter to Osmania
Hospital at Hyderabad and the deceased breathed her last at
5:45 p.m. on 17.02.2005.
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2.1 That the father of the deceased lodged the first
information report against the appellant herein –original accused
No.1 and four other persons – family members of original accused
No.1, initially for the offences under Sections 498A, 307 read
with 149 of the IPC and Section 4 of the Dowry Prohibition Act,
1961, which was registered as FIR Crime No. 31/2005. That
thereafter, the victim succumbed to the injuries and died in the
hospital, and therefore, the offences under Section 302 read with
34 of the IPC, Section 304B read with Section 34 of the IPC and
Sections 3, 4 & 6 of the Dowry Prohibition Act, 1961 were added.
During the investigation, the investigating officer recorded the
statement of concerned witnesses, namely, parents of the victim,
neighbours in the neighbourhood of the house of the accused.
He also collected the medical evidence. The dying declaration of
the victim was recorded by the Metropolitan Magistrate (PW28).
After conclusion of the investigation and having found prima
facie case, the police filed a charge sheet against all the accused
for the offences punishable under Sections 498A, 304B, 302
read with Section 34 of the IPC, and Sections 3, 4 & 6 of the
Dowry Prohibition Act, 1961. As the case was exclusively to be
triable by the Court of Sessions, the learned Magistrate
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committed the case to the learned Principal Sessions Judge,
Bidar, which was registered as Sessions Case No. 83/2005. The
accused pleaded not guilty, and therefore, all of them came to be
tried for the aforesaid offences.
2.2 To prove the case against the accused, the prosecution
examined as many as 28 witnesses. Through the aforesaid
witnesses, the prosecution brought on record the relevant
documentary evidence including the dying declaration of the
victim. Thereafter, the defence led the evidence and examined
two witnesses as DW1 & DW2 including the minor son. That the
further statement of the accused were recorded under Section
313 Cr.P.C. by pointing the incriminating circumstances against
the accused persons. The case of the accused was of a total
denial. That on appreciation of the evidence and considering the
material on record and considering the submissions made on
behalf of the accused as well as the prosecution, by judgment
and order dated 20.12.2007, the learned trial Court acquitted all
the accused for the offences for which they were tried. While
acquitting the accused, the learned trial Court did not accept
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Exhibit P2 as a dying declaration. The learned trial Court also
did not accept the demand of dowry.
3. Feeling aggrieved and dissatisfied with the order of
acquittal passed by the learned trial Court acquitting the accused
for the offences punishable under Sections 302 read with 34,
498A, 304B read with 34 of the IPC, and Sections 3,4 & 6 of the
Dowry Prohibition Act, 1961, the State of Karnataka preferred
appeal before the High Court of Karnataka, Circuit Bench at
Gulbarga being Criminal Appeal No. 402/2008. On re
appreciation of the entire evidence on record and by giving cogent
reasons in detail, by the impugned judgment and order, the High
Court has set aside the order of acquittal passed by the learned
trial Court so far as acquitting original accused No.1 – husband
of the deceased is concerned and has held him guilty for the
offences punishable under Section 302, 498A of the IPC and
Section 4 of the Dowry Prohibition Act, 1961. While convicting
original accused No.1, the High Court has sentenced original
accused No.1 to undergo imprisonment for life with fine of
Rs.10,000/, and in default of payment of fine, to undergo
further 5 months rigorous imprisonment for the offence
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punishable under Section 302 of the IPC. The High Court has
also sentenced original accused No.1 to undergo two years
imprisonment and fine of Rs.5,000/, and in default of payment
of fine, to undergo three months rigorous imprisonment for the
offence punishable under Section 498A of the IPC. The High
Court has also sentenced original accused No.1 to undergo six
months and fine of Rs.1,000/, in default of payment of fine, to
undergo simple imprisonment for one month for the offence
under Section 4 of the Dowry Prohibition Act. The High Court
has further directed that all the sentences imposed shall run
concurrently.
4. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the original
accused No.1 has preferred the present appeal.
5. Shri Venkateswara Rao Anumolu, learned advocate
appearing on behalf of the accused has vehemently submitted
that in the facts and circumstances of the case, the High Court
has committed a grave error in quashing and setting aside the
order of acquittal passed by the learned trial Court.
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5.1 It is further submitted by the learned advocate
appearing on behalf of the accused that once the learned trial
Court gave the cogent reasons while acquitting the accused,
though it was permissible for the High Court to reappreciate the
entire evidence on record, the High Court has not at all dealt with
and/or considered the reasons which weighed with the learned
trial Court while acquitting the accused.
5.2 It is further submitted by the learned advocate
appearing on behalf of the accused that while reversing the
judgment and order of acquittal passed by the learned trial
Court, the High Court has not at all considered the scope and
ambit of the appeal against acquittal.
5.3 It is further submitted by the learned advocate
appearing on behalf of the accused that, as held by this Court in
catena of decisions, if two views are possible on the evidence
adduced in the case, one pointing out to the guilt of the accused
and the other to his innocence, the view which is favourable to
the accused should be adopted. It is further submitted by the
learned advocate appearing on behalf of the accused that the
High Court being the first appellate Court would be justified in
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reappreciating the entire evidence on record to arrive at a just
conclusion, however, once there was an order of acquittal passed
by the learned trial Court, as while so reappreciating the
evidence, the appellate Court should first analyse the findings of
the trial Court and then for valid reasons to be recorded, the
appellate Court can reverse such finding of the trial Court.
5.4 It is further submitted by the learned advocate
appearing on behalf of the accused that in the present case while
reappreciating the evidence and reversing the order of acquittal
passed by the learned trial Court, the High Court has not at all
analysed the findings of the trial Court, and has given its own
findings without even considering the grounds on which the
learned trial Court acquitted the accused. It is submitted that
therefore the High Court has exceeded in its jurisdiction while
exercising the appellate jurisdiction against the order of acquittal
passed by the learned trial Court.
5.5 In support of the above submissions, learned advocate
appearing on behalf of the accused has heavily relied upon the
following decisions of this Court, Chandu vs. State of
Maharashtra, (2002) 9 SCC 408 (para 7); Surinder Singh vs. State
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of U.P. (2003) 10 SCC 26 (Paras 18 & 19); Devatha
Venkataswamy alias Rangaiah vs. Public Prosecutor, High Court
of A.P. (2003) 10 SCC 700 (para 5); Main Pal vs. State of Haryana
(2004) 10 SCC 692 (Para 12); Chanakya Dhibar (dead) vs. State of
W.B. (2004) 12 SCC 398 (Para 18); Kalyan Singh vs. State of M.P.
(2006) 13 SCC 303 (Para 7); Bannareddy vs. State of Karnataka
(2018) 5 SCC 790 (paras 10 & 11); Madathil Narayanan vs. State
of Kerala (2018) 14 SCC 513 (paras 8 & 9); and Mohd. Akhtar @
Kari vs. State of Bihar JT 2018 (12) SC 68 : (2019) 2 SCC 513.
5.6 It is further submitted by the learned advocate
appearing on behalf of the accused that even otherwise on merits
also, the High Court has committed a grave error in holding the
appellant – original accused No.1 guilty for the offences
punishable under Sections 302 and 498A of the IPC and Section
4 of the Dowry Prohibition Act, 1961.
5.7 It is further submitted by the learned advocate
appearing on behalf of the accused that while convicting the
appellant – original accused no.1 for the offence under Section
302 of the IPC, the High Court has materially erred in relying
upon and/or considering the alleged dying declaration. It is
10
submitted that the High Court has failed to appreciate the
relevant aspect that the alleged dying declaration was recorded
on printed papers with certain corrections and/or different
quality of papers with uncertain statements. It is submitted that
the High Court has not properly appreciated the relevant aspect
that the deceased got burn injuries to the extent of 90% inside
the locked room, but the kerosene stove without any lid
containing 800 ML of kerosene and the match box which was
lying in the same room did not catch fire and for which there was
no explanation by the prosecution.
5.8 Making the above submissions and relying upon the
above decisions of this Court, it is prayed to allow the present
appeal and quash and set aside the impugned judgment and
order of conviction passed by the High Court.
6. Learned counsel appearing on behalf of the respondent
– State, while opposing the present appeal, has vehemently
submitted that in the facts and circumstances of the case, and
on reappreciation of the entire evidence on record, which is
permissible while exercising the powers in an appeal against the
order of acquittal, the High Court has not committed any error in
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reversing the judgment and order of acquittal passed by the
learned trial Court and consequently convicting the accused for
the offence punishable under Section 302 of the IPC.
6.1 It is vehemently submitted by the learned counsel
appearing on behalf of the respondent – State that having found
that the findings recorded by the learned trial Court, recorded
while acquitting the original accused, are perverse and contrary
to the evidence on record and thereafter on reappreciation of
evidence, the High Court has found the accused guilty, the same
is not required to be interfered with by this Court.
6.2 It is vehemently submitted by the learned counsel
appearing on behalf of the respondent – State that as such, as
held by this Court in catena of decisions, the powers of appellate
Court in an appeal against acquittal are no less than in an
appeal against conviction. It is further submitted that as held by
this Court in catena of decisions, the High Court while hearing
an appeal against the order of acquittal can reappreciate the
entire evidence on record and having done so and having found
the dying declaration reliable, there is no infirmity with the
conviction of the appellant under Section 302 of the IPC.
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6.3 It is vehemently submitted by the learned counsel
appearing on behalf of the respondent – State that in the present
case, the High Court has considered in detail the medical
evidence; the dying declaration and the other prosecution
witnesses who fully supported the case of the prosecution that it
was the appellant herein – original accused no.1 who committed
the crime and therefore the High Court has rightly convicted the
appellant herein – original accused no.1.
6.4 It is submitted that if the reasonings and the grounds
on which the learned trial Court acquitted the accused are seen,
they are perverse and contrary to the evidence on record. It is
submitted that while acquitting the original accused, the learned
trial Court wrongly gave more importance to some minor
contradictions. However, did not consider the overwhelming
evidence in the form of medical evidence and the dying
declaration which came to be proved. It is submitted that
therefore the High Court has rightly convicted the accused by
reversing the judgment and order of acquittal passed by the
learned trial Court.
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6.5 Now so far as the submission on behalf the appellant
that while quashing and setting aside the order of acquittal, the
High Court failed to examine the reasons on which the order of
acquittal was passed and therefore the High Court exceeded in
exercise of its jurisdiction, while sitting as an appellate Court
against the judgment and order of acquittal is concerned, learned
counsel appearing on behalf of the respondentState has
submitted that merely on the aforesaid ground and if otherwise
on reappreciation of evidence by this Court, it is found that the
learned trial Court was not justified in recording the acquittal of
the accused and that the evaluation of the evidence made by the
trial Court was manifestly erroneous and even otherwise on
merits the ultimate conclusion of the High Court in convicting
the accused is found to be correct, solely on the aforesaid ground
that the High Court did not consider/examine the reasons on
which the order of acquittal was passed, the conviction of the
accused is not required to be set aside. In support of above
submissions, learned counsel appearing on behalf of the
respondent – State has heavily relied upon the following decisions
of this Court, Atley v. State of Uttar Pradesh AIR 1955 SC 807;
Aher Raja Khima v. The State of Saurashtra 1955 (2) SCR 1285;
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Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC 228;
K.Gopal Reddy v. State of Andhra Pradesh (1979) 1 SCC 355;
Sambasivan v. State of Kerala (1998) 5 SCC 412; K.
Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309 .
6.6 Making the above submissions and relying upon the
aforesaid decisions of this Court, it is prayed to dismiss the
present appeal.
7. We have heard the learned counsel for the respective
parties at length.
7.1 We have considered and gone through the judgment
and order of acquittal passed by the learned trial Court as well as
the impugned judgment and order passed by the High Court
reversing the acquittal and convicting the original accused for the
offence punishable under Section 302 of the IPC.
7.2 We have also reappreciated the entire evidence on
record to satisfy ourselves on the guilt of the appellant – original
accused no.1. We have also considered the reasonings and the
findings recorded by the learned trial Court while acquitting the
accused. We have also considered the reasonings and findings
15
recorded by the High Court while convicting the appellant –
original accused no.1.
8. Having considered the entire evidence on record afresh
and on reappreciation of the entire evidence on record, we are of
the firm opinion that the High Court has not committed any error
in holding the appellant – original accused no.1 guilty for the
offence punishable under Section 302 of the IPC. In the present
case, there is a dying declaration given by the deceased which
has been proved and supported by the independent witnesses,
metropolitan magistrate (PW28), it has been established and
proved by examining the medical officer and even the medical
officer certified that the patient was conscious and coherent and
fit state of mind to give the statement. The metropolitan
magistrate who recorded the dying declaration and who was
examined by the prosecution as PW28 deposed as under:
“that he was working as Prl. Jr. Civil Judge, Bhongir;
during the relevant period, he was working as XI
Metropolitan Magistrate, Secunderabad. He has further
deposed that in pursuance of the requisition received
from the I.O., P.S. Afzal Gunj, he proceeded to Osmania
General Hospital on 14.2.2005 and reached the said
place around 6:25 a.m.; with the assistance of the police
and duty doctor, he went to Acute Burns Ward and
contacted the victim by name Abhilash Kaur, wife of Vijay
Mohan Singh; one Dr. Rajesh was the duty doctor; he
16
interacted with the said doctor and satisfied himself as to
the mental fitness of the victim to Abilash Kaur the
statement before him and also obtained an endorsement
in that regard on the relevant document Ex. P2 which is
already marked. Further he has deposed that he asked
preliminary questions to the victim and thereafter having
been satisfied as to the nature of her statement being
voluntary and not being under coercion or any kind of
duress, he recorded her statement in his own
handwriting in Ex. P2 and Ex. P2(d) is his signature;
the handwriting portion in Ex. P2 is in his handwriting
and they are true and correct; they are in question and
answer form. Further, he has deposed that he read over
the contents therein to the victim Abhilash Kaur in Hindi
language which was known to her and to him also;
having admitted to the correctness of that document,
victim signed in his presence as per Ex. P2(a); that he
obtained the signature of the duty doctor as per Ex. P
2(c). Further he has deposed that as a matter of
abundant caution, he obtained the R.T.I. of the victim
Abhilash Kaur below Ex. P2(a); that victim Abhilash
Kaur made statement against her husband with regard to
assault and also acting under the influence of his mother
and sister that he demanded money; she complained
against the accused as being responsible for the death of
his first wife also on account being burnt by him. He has
further deposed that at the time of recording Ex. P2,
other than himself, the doctor and the victim, none else
were present nearby; the victim was there in the general
ward; having so recorded such statement of the victim as
per Ex. P2, he returned to his place of work along with
the document and along with covering letter, he sent Ex.
P2 to IV Metropolitan Magistrate, Hyderabad, within
whose jurisdiction that Osmania Hospital and Afzal Gunj
police station are situated; and that the covering letter is
marked as Ex.P2(e) and Ex.P2(f) is his signature.
Further he has deposed that he was duty bound to record
such statements in all the hospitals of Hyderabad for 15
days and for the next 15 days, some other Magistrate will
be there; likewise the duty keeps changing every 15 days
and since the date pertaining to the recording of this
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statement fell during his duty days he recorded the
same.”
8.1 On Ex. P2, the medical officer had certified that at the
relevant time the patient was conscious and coherent and fit
state of mind to give the statement. In the dying declaration, the
deceased specifically stated before the Magistrate while
answering question nos. 7 & 8, as under:
“Q.No.7 What happened to you and how the same
happened?
Yesterday at 5:00 p.m. in my house near the Gurudwara
my husband Vijaya Mohan Singh took kerosene from the
kerosene batti stove and put it on my body. I was
wearing green color shirt and shalwar and he lit a match
stick and put the burning match stick on my body and
locked the door of the room and went away as such I was
burnt on my face, hands and other parts of body.
QNo.8 Is there any foul Act/Omission of anyone or do
you blame anyone for this to you?
My husband did this to me. He beats me and acts under
the influence of his mother and sisters. He demanded
money from me and would torture to me. His first wife
was also burnt by him.”
While answering question nos. 10, 11 & 12, the victim stated as
under:
Q.No.10 What was the behaviour of your husband
Vijay Mohan Singh?
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My husband would say that I am mad and frequently ask
money. He had earlier wife by name Kamaljeet Kaur.
She too was burnt by my husband and she died. My
husband managed the case and came out. (Patient is in
pain). He would ask me to get money from my parents.
Q.No.11 How you come out of the room and where was
your daughter?
I opened the door and came out and my daughter was in
other room and then I fell lot of pain and burning.
Q.No.12 What more do you want to say?
In Bidar to the Police I did not say the above as my
husband and my brother in law Madan Mohan Singh
threatened me and asked me not to tell the truth and
hence I gave a wrong statement. Now I am telling the
truth. Sir please help me and save me. My child be
taken care of.”
9. Thus, the dying declaration involving the appellant
came to be established and proved by the prosecution, by
examining the doctor as well as the metropolitan magistrate who
record the dying declaration. Despite the above overwhelming
evidence in the form of medical evidence as well as the dying
declaration and the deposition of the metropolitan magistrate,
the learned trial Court discarded the same on some minor
contradictions/omissions. It also appears from the judgment
and order passed by the learned trial Court that the learned trial
Court gave undue importance to the initial statement of the
victim while giving the history to the doctor when she was
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admitted and when she gave the history of accidental burns
while cooking in kitchen. However, the trial Court did not
consider her explanation on the above gave in the dying
declaration. Even considering the surrounding circumstances
and the medical evidence and the other evidence, the defence
has miserably failed and proved that it was an accidental
burns/death. The appellant – original accused no.1 was last
seen in the house and immediately on the occurrence of the
incident he ran away. Thus, we are of the opinion that the
approach of the trial Court was patently erroneous and the
conclusions arrived at by it were wholly untenable.
10. In the light of the above findings recorded by us, it is
required to be considered, whether solely on the ground that the
High Court has not examined the reasons on which the order of
acquittal was passed and convicted the accused by interfering
with the order of acquittal passed by the learned trial Court, the
same is further required to be interfered with by this Court?
11. An identical question came to be considered before
this Court in the case of Umedbhai Jadavbhai (supra). In the
case before this Court, the High Court interfered with the order
20
of acquittal passed by the learned trial Court on reappreciation
of the entire evidence on record. However, the High Court, while
reversing the acquittal, did not consider the reasons given by the
learned trial Court while acquitting the accused. Confirming the
judgment of the High Court, this Court observed and held in
para 10 as under:
“10. Once the appeal was rightly entertained against
the order of acquittal, the High Court was entitled to re
appreciate the entire evidence independently and come to
its own conclusion. Ordinarily, the High Court would
give due importance to the opinion of the Sessions Judge
if the same were arrived at after proper appreciation of
the evidence. This rule will not be applicable in the
present case where the Sessions Judge has made an
absolutely wrong assumption of a very material and
clinching aspect in the peculiar circumstances of the
case.”
11.1 In the case of Sambasivan (supra), the High Court
reversed the order of acquittal passed by the learned trial Court
and held the accused guilty on reappreciation of the entire
evidence on record, however, the High Court did not record its
conclusion on the question whether the approach of the trial
Court in dealing with the evidence was patently illegal or the
conclusions arrived at by it were wholly untenable. Confirming
the order passed by the High Court convicting the accused on
21
reversal of the acquittal passed by the learned trial Court, after
satisfy that the order of acquittal passed by the learned trial
Court was perverse and suffer from infirmities, this Court
declined to interfere with the order of conviction passed by the
High Court. While confirming the order of conviction passed by
the High Court, this Court observed in paragraph 8 as under:
“8. We have perused the judgment under appeal to
ascertain whether the High Court has conformed to the
aforementioned principles. We find that the High Court
has not strictly proceeded in the manner laid down by
this Court in Doshi case (1996) 9 SCC 225 viz. first
recording its conclusion on the question whether the
approach of the trial court in dealing with the evidence
was patently illegal or the conclusions arrived at by it
were wholly untenable, which alone will justify
interference in an order of acquittal though the High
Court has rendered a wellconsidered judgment duly
meeting all the contentions raised before it. But then will
this noncompliance per se justify setting aside the
judgment under appeal? We think, not. In our view, in
such a case, the approach of the court which is
considering the validity of the judgment of an appellate
court which has reversed the order of acquittal passed by
the trial court, should be to satisfy itself if the approach
of the trial court in dealing with the evidence was
patently illegal or conclusions arrived at by it are
demonstrably unsustainable and whether the judgment
of the appellate court is free from those infirmities; if so
to hold that the trial court judgment warranted
interference. In such a case, there is obviously no reason
why the appellate court’s judgment should be disturbed.
But if on the other hand the court comes to the
conclusion that the judgment of the trial court does not
suffer from any infirmity, it cannot but be held that the
22
interference by the appellate court in the order of
acquittal was not justified; then in such a case the
judgment of the appellate court has to be set aside as of
the two reasonable views, the one in support of the
acquittal alone has to stand. Having regard to the above
discussion, we shall proceed to examine the judgment of
the trial court in this case.”
11.2 In the case of K.Ramakrishnan Unnjithan (supra) , after
observing that though there is some substance in the grievance
of the learned counsel appearing on behalf of the accused that
the High Court has not adverted to all the reasons given by the
trial Judge for according an order of acquittal, this Court refused
to set aside the order of conviction passed by the High Court
after having found that the approach of the Sessions Judge in
recording the order of acquittal was not proper and the
conclusion arrived at by the learned Sessions Judge on several
aspects was unsustainable. This Court further observed that as
the Sessions Judge was not justified in discarding the
relevant/material evidence while acquitting the accused, the
High Court, therefore, was fully entitled to reappreciate the
evidence and record its own conclusion. This Court scrutinised
the evidence of the eyewitnesses and opined that reasons
adduced by the trial Court for discarding the testimony of the
23
eyewitnesses were not at all sound. This Court also observed
that as the evaluation of the evidence made by the trial court as
manifestly erroneous and therefore it was the duty of the High
Court to interfere with an order of acquittal passed by the
learned Sessions Judge.
11.3 In the case of Atley (supra) , in paragraph 5, this Court
observed and held as under:
“5. It has been argued by the learned counsel for the
appellant that the judgment of the trial court being one of
acquittal, the High Court should not have set it aside on
mere appreciation of the evidence led on behalf of the
prosecution unless it came to the conclusion that the
judgment of the trial Judge was perverse. In Our opinion,
it is not correct to say that unless the appellate court in
an appeal under Section 417, Criminal P. C. came to the
conclusion that the judgment of acquittal under appeal
was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the
High Court on an appeal against an order of acquittal to
review the entire evidence and to come to its own
conclusion, of course, keeping in view the well
established rule that the presumption of innocence of the
accused is not weakened but strengthened by the
judgment of acquittal passed by the trial court which had
the advantage of observing the demeanour of witnesses
whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide
powers of appreciation of evidence in an appeal against
an order of acquittal as in the case of an appeal against
an order of conviction, subject to the riders that the
presumption of innocence with which the accused person
24
starts in the trial court continues even up to the
appellate stage and that the appellate court should
attach due weight to the opinion of the trial court which
recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those
principles in mind, and comes to a contrary conclusion,
the judgment cannot be said to have been vitiated. (See in
this connection the very cases cited at the Bar, namely,
Surajpal Singh v. The State 1952 CriLJ331; Wilayat Khan
v. State of Uttar Pradesh, AIR 1953 SC 122. In our
opinion, there is no substance in the contention raised on
behalf of the appellant that the High Court was not
justified in reviewing the entire evidence and coming to
its own conclusions.”
11.4 In the case of , this Court has
K.Gopal Reddy(supra)
observed that where the trial Court allows itself to be beset with
fanciful doubts, rejects creditworthy evidence for slender reasons
and takes a view of the evidence which is but barely possible, it
is the obvious duty of the High Court to interfere in the interest
of justice, lest the administration of justice be brought to
redicule.
12. Considering the aforesaid decisions, it emerges that
even in the case where the High Court in an appeal against the
order of acquittal interfered with the order of acquittal without
specifically considering the reasons arrived at by the learned
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trial court and without specifically observing that the reasons
are perverse, this Court can still maintain the order of conviction
passed by the High Court, if this Court is satisfied itself that the
approach of the trial court in dealing with the evidence was
patently illegal or the conclusions arrived at by it are
demonstrably unsustainable and the judgment of the appellate
court is free from those infirmities. It also emerges that the High
Court is entitled to reappreciate the entire evidence
independently and come to its own conclusion, however, the
High Court would not be justified in interfering with the order of
acquittal solely on the ground on reappreciation of the entire
evidence that two views are possible.
13. On reappreciation of the entire evidence on record
and the findings recorded by the learned trial court while
acquitting the accused, we are of the opinion that the approach
of the trial court was patently erroneous and the conclusions
arrived at by it were wholly untenable. We find that it is not a
case where two reasonable views on examination of the evidence
are possible and so the one which supports the accused should
be adopted. The view taken by the trial court can hardly be said
26
to be a view on proper consideration of evidence, much less a
reasonable view. The learned trial court, as observed
hereinabove, committed a patent error in discarding the dying
declaration and the other material evidence, discussed
hereinabove. Therefore, the interference by the High Court in
the appeal against the acquittal of the appellant and recording
the finding of his conviction for the offence under Section 302 of
the IPC, on consideration of the evidence, is justified. The
judgment under appeal does not warrant any interference.
14. Now so far as the decisions relied upon by the learned
counsel appearing on behalf of the appellantaccused, referred to
hereinabove, more particularly a recent decision of this Court in
the case of Mohd. Akhtar @ Kari (supra) is concerned, first of all,
there cannot be any dispute with reference to the proposition of
the law laid down by this Court in the aforesaid decisions.
However, we are of the opinion that none of the aforesaid
decisions relied upon by the learned counsel appearing on behalf
of the appellant shall be applicable to the facts of the case on
hand. Even in the case of Mohd. Akhtar @ Kari (supra), on
appreciation of the evidence, this Court found that the acquittal
27
was justified on a probable view taken by the trial court. On
appreciation of evidence, this Court observed that the High
Court could not have reversed the judgment of the acquittal
merely because another view was possible. In the present case,
as observed hereinabove, and on reappreciation of the entire
evidence on record, this is not a case where two reasonable
views are possible and so the one which supports the accused
should be adopted. As observed hereinabove, the findings
recorded by the learned trial court while acquitting the accused
are perverse and the approach of the trial court was patently
erroneous and the conclusions arrived at by it were wholly
untenable. Therefore, considering the aforesaid decisions of this
court in the cases of Sambasivan (supra); Umedbhai Jadavbhai
(supra) and Atley (supra), we are of the opinion that the
impugned judgment and order of conviction passed by the High
Court is not required to be interfered with by this Court. The
judgment and order under appeal does not warrant any
interference. Hence, we find no merit in the appeal and the
same deserves to be dismissed, and is accordingly dismissed.
…………………………………….J.
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[L. NAGESWARA RAO]
NEW DELHI; ……………………………………J.
APRIL 10, 2019. [M.R. SHAH]
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