VIJAY MOHAN SINGH versus STATE OF KARNATAKA

[2019] 6 S.C.R. 994

[2019] 6 S.C.R.

VIJAY MOHAN SINGH

STATE OF KARNATAKA

(Criminal Appeal No. 1656 of 2013)

APRIL 10, 2019

[L. NAGESWARA RAO AND M.R. SHAH, JJ.]

Penal Code, 1860 – ss.302 r/w. 34, 498-A, 304-B r/w. s.34 –Prosecution case that appellant-accused (husband of victim-deceased) poured kerosene on the victim and lit fire and ran awayCfrom the spot – Consequent to which, victim sustained grievous burntinjuries and later died in the hospital – Dying declaration of thevictim was recorded by the Metropolitan Magistrate – In dyingdeclaration victim categorically stated that appellant-accused burnther – Police filed charge sheet against the three accused personsDincluding appellant-accused for the offences punishable u/ss. 498-A, 304-B, 302 r/w. s.34 of IPC and ss.3, 4 & 6 of the DowryProhibition Act – Trial court acquitted all the accused – However,the High Court set aside the order of acquittal of the appellant-accused and held him guilty – On appeal, held: In the instantcase, there was dying declaration given by the victim which wasEproved and supported by the independent witnesses i.e. themetropolitan magistrate and the medical officer – But the same wasdiscarded by the trial court on some minor contradictions/omissions– On re-appreciation of the entire evidence, it was found that theapproach of the trial court was patently erroneous and theFconclusions arrived at by it were wholly untenable – Trial courtcommitted patent error in discarding the dying declaration andother material evidence – Therefore, the interference by the HighCourt in the appeal against the acquittal of the appellant wasjustified – Dowry Prohibition Act, 1961 – ss.3, 4 and 6.

GDismissing the appeal, the Court

HELD: 1. The dying declaration involving the appellantcame to be established and proved by the prosecution, byexamining the doctor as well as the metropolitan magistrate whorecorded the dying declaration. Despite the above overwhelming

evidence in the form of medical evidence as well as the dyingdeclaration and the deposition of the metropolitan magistrate,the trial Court discarded the same on some minor contradictions/omissions. It also appears from the judgment and order passedby the trial Court that it gave undue importance to the initialstatement of the victim while giving the history to the doctorwhen she was admitted and when she gave the history of accidentalburns while cooking in the kitchen. However, the trial Court didnot consider her explanation given in the dying declaration. Evenconsidering the surrounding circumstances and the medicalevidence and the other evidence, the defence has miserably failedand proved that it was an accidental burns/death. The appellantwas last seen in the house and immediately on the occurrence ofthe incident he ran away. Thus, this Court is of the opinion thatthe approach of the trial Court was patently erroneous and theconclusions arrived at by it were wholly untenable.[Para 9][1007-F-H; 1008-A-B]

2. In the light of the above findings, it is required to beconsidered, whether solely on the ground that the High Courthas not examined the reasons on which the order of acquittal waspassed and convicted the accused by interfering with the orderof acquittal passed by the trial Court, the same is further requiredto be interfered with by this Court? [Para 10][1008-C]

3. Considering various Supreme Court decisions, itemerges that even in the case where the High Court in an appealagainst the order of acquittal interfered with the order of acquittalwithout specifically considering the reasons arrived at by the trialcourt and without specifically observing that the reasons areperverse, this Court can still maintain the order of convictionpassed by the High Court, if this Court is satisfied itself that theapproach of the trial court in dealing with the evidence was patentlyillegal or the conclusions arrived at by it are demonstrablyunsustainable and the judgment of the appellate court is free fromthose infirmities. It also emerges that the High Court is entitledto re-appreciate the entire evidence independently and come toits own conclusion, however, the High Court would not be justifiedin interfering with the order of acquittal solely on the ground on

[2019] 6 S.C.R.

Are-appreciation of the entire evidence that two views are possible.[Para 12][1011-F-H]

4. On re-appreciation of the entire evidence on record andthe findings recorded by the trial court while acquitting theaccused, this Court is of the opinion that the approach of the trialBcourt was patently erroneous and the conclusions arrived at by itwere wholly untenable. This Court finds that it is not casewhere two reasonable views on examination of the evidence arepossible and so the one which supports the accused should beadopted. The view taken by the trial court can hardly be said tobe view on proper consideration of evidence, much less aCreasonable view. The trial court, as observed hereinabove,committed patent error in discarding the dying declaration andthe other material evidence, discussed hereinabove. Therefore,the interference by the High Court in the appeal against theacquittal of the appellant and recording the finding of hisDconviction for the offence under Section 302 of the IPC, onconsideration of the evidence, is justified. The judgment underappeal does not warrant any interference. [Para 13][1012-A-C]

Atley v. State of Uttar Pradesh AIR 1955 SC 807 ;Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC228 : [1978] 2 SCR 471; Sambasivan v. State of Kerala(1998) 5 SCC 412: [1998] 3 SCR 280 – relied on.

Chandu v. State of Maharashtra (2002) 9 SCC 408 ;Surinder Singh v. State of U.P. (2003) 10 SCC 26:[2003] 3 Suppl. SCR 401; Devatha Venkataswamy aliasFRangaiah v. Public Prosecutor, High Court of A.P. (2003)10 SCC 700; Main Pal v. State of Haryana (2004) 10SCC 692:[2004] 3 SCR 768; Chanakya Dhibar (dead)v. State of W.B. (2004) 12 SCC 398:[2003] 6 Suppl.SCR 1181; Kalyan Singh v. State of M.P. (2006) 13SCC 303 : [2006] 9 Suppl.SCR 249; Bannareddy v.GState of Karnataka (2018) 5 SCC 790 : [2018] 4 SCR623 ; Madathil Narayanan v. State of Kerala (2018) 14SCC 513 ; Mohd. Akhtar @ Kari v. State of Bihar(2019) 2 SCC 513 – inapplicable.

Aher Raja Khima v. The State of Saurashtra [1955] 2SCR 1285 ; K.Gopal Reddy v. State of Andhra Pradesh(1979) 1 SCC 355 : [1979] 2 SCR 265;K. Ramakrishnan Unnithan v. State of Kerala(1999) 3 SCC 309 : [1999] 1 SCR 1222 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1656 of 2013

From the Judgment and Order dated 08.02.2013 of the High Courtof Karnataka Circuit Bench at Gulbarga in Criminal Appeal No. 402 ofG2008.

Venkateswara Rao Anumolu, Chandra Mohan Anisetty, ShashwatGoel, Advs. for the Appellant.

AJoseph Aristotle S., Mrs. Priya Aristotle, Shiva P., Mrs. FarahHashmi, Ms. Anitha Shenoy, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.B

B1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 08.02.2013 passed by the High Court of Karnataka,Circuit Bench at Gulbarga in Criminal Appeal No. 402 of 2008, by whichthe High Court has allowed the said appeal preferred by the State ofKarnataka and quashed and set aside the judgment and order of acquittaldated 20.12.2007 passed by the learned Presiding Officer, Fast TrackCCourt-IV, Bidar (hereinafter referred to as the learned ‘trial Court’), bywhich the learned trial Court acquitted original accused no.1 (the appellantherein) for the offences punishable under Sections 302 read with 34,498A, 304-B read with 34 of the IPC, and Sections 3,4 & 6 of theDowry Prohibition Act, 1961, and consequently convicted originalDaccused No.1 for the offence punishable under Sections 302 of the IPCand sentenced him to undergo imprisonment for life and also convictedthe appellant herein under Section 498A of the IPC and Section 4 of theDowry Prohibition Act, 1961, original accused No.1 has preferred thepresent appeal.

E2. The prosecution case in nutshell is as under:

That the marriage of the appellant with deceased Abhilasha wascelebrated on 11.12.2002 at Gurudwara Temple at Bidar. It is allegedthat 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 itwas agreed to give 6 tolas of gold and domestic articles/utensils andFaccordingly marriage was performed. It is also alleged that after sixmonths of the marriage, all the accused started demanding additionaldowry of Rs.50,000/- for investing it as capital for the electric shop runby original accused No.1 and by demanding so, A1 to A3 gave bothmental and physical cruelty to the deceased, despite the advice of PWsG1, 2, 6 and 14 not to do so, but even then they continued it and on13.2.2005 at 3:15 p.m., they picked up quarrel on the ground that howthe deceased did not bring the said cash of Rs.50,000/-. It is furtheralleged that with the intervention of the neighbours the deceased andaccused 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 appellantherein) asked the deceased how and why she phoned to her parents andby 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 thespot. That the deceased sustained grievous burnt injuries and it is theneighbours who shifted her to the Government Hospital at Bidar andthereafter to Osmania Hospital at Hyderabad and the deceased breathedher last at 5:45 p.m. on 17.02.2005.2.1 That the father of the deceased lodged the first informationreport against the appellant herein –original accused No.1 and four otherpersons – family members of original accused No.1, initially for theoffences under Sections 498A, 307 read with 149 of the IPC and Section4 of the Dowry Prohibition Act, 1961, which was registered as FIRCrime No. 31/2005. That thereafter, the victim succumbed to the injuriesand died in the hospital, and therefore, the offences under Section 302read with 34 of the IPC, Section 304-B read with Section 34 of the IPCand Sections 3, 4 & 6 of the Dowry Prohibition Act, 1961 were added.During the investigation, the investigating officer recorded the statementof concerned witnesses, namely, parents of the victim, neighbours in theneighbourhood of the house of the accused. He also collected the medicalevidence. The dying declaration of the victim was recorded by theMetropolitan Magistrate (PW28). After conclusion of the investigationand having found prima facie case, the police filed charge sheet againstall the accused for the offences punishable under Sections 498A, 304-B,302 read with Section 34 of the IPC, and Sections 3, 4 & 6 of the DowryProhibition Act, 1961. As the case was exclusively to be triable by theCourt of Sessions, the learned Magistrate committed the case to thelearned Principal Sessions Judge, Bidar, which was registered as SessionsCase No. 83/2005. The accused pleaded not guilty, and therefore, all ofthem came to be tried for the aforesaid offences.

2.2 To prove the case against the accused, the prosecutionexamined as many as 28 witnesses. Through the aforesaid witnesses,the prosecution brought on record the relevant documentary evidenceincluding the dying declaration of the victim. Thereafter, the defenceled the evidence and examined two witnesses as DW1 & DW2 includingthe minor son. That the further statement of the accused were recordedunder Section 313 Cr.P.C. by pointing the incriminating circumstances

Aagainst the accused persons. The case of the accused was of totaldenial. That on appreciation of the evidence and considering the materialon record and considering the submissions made on behalf of the accusedas well as the prosecution, by judgment and order dated 20.12.2007, thelearned trial Court acquitted all the accused for the offences for whichthey were tried. While acquitting the accused, the learned trial CourtBdid not accept Exhibit P2 as dying declaration. The learned trial Courtalso did not accept the demand of dowry.

3. Feeling aggrieved and dissatisfied with the order of acquittalpassed by the learned trial Court acquitting the accused for the offencespunishable under Sections 302 read with 34, 498A, 304-B read with 34Cof the IPC, and Sections 3,4 & 6 of the Dowry Prohibition Act, 1961, theState 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 reasonsin detail, by the impugned judgment and order, the High Court has setDaside the order of acquittal passed by the learned trial Court so far asacquitting original accused No.1 – husband of the deceased is concernedand 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 sentencedoriginal accused No.1 to undergo imprisonment for life with fine ofERs.10,000/-, and in default of payment of fine, to undergo further 5 monthsrigorous imprisonment for the offence punishable under Section 302 ofthe IPC. The High Court has also sentenced original accused No.1 toundergo two years imprisonment and fine of Rs.5,000/-, and in defaultof payment of fine, to undergo three months rigorous imprisonment forFthe offence punishable under Section 498A of the IPC. The High Courthas also sentenced original accused No.1 to undergo six months andfine of Rs.1,000/-, in default of payment of fine, to undergo simpleimprisonment for one month for the offence under Section 4 of the DowryProhibition Act. The High Court has further directed that all the sentencesimposed shall run concurrently.G

4. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the original accused No.1 haspreferred the present appeal.

5. Shri Venkateswara Rao Anumolu, learned advocate appearingHon behalf of the accused has vehemently submitted that in the facts and

circumstances of the case, the High Court has committed grave errorin quashing and setting aside the order of acquittal passed by the learnedtrial Court.

5.1 It is further submitted by the learned advocate appearing onbehalf of the accused that once the learned trial Court gave the cogentreasons while acquitting the accused, though it was permissible for theHigh Court to re-appreciate the entire evidence on record, the HighCourt has not at all dealt with and/or considered the reasons whichweighed with the learned trial Court while acquitting the accused.

5.2 It is further submitted by the learned advocate appearing onbehalf of the accused that while reversing the judgment and order ofacquittal passed by the learned trial Court, the High Court has not at allconsidered the scope and ambit of the appeal against acquittal.

5.3 It is further submitted by the learned advocate appearing onbehalf of the accused that, as held by this Court in catena of decisions, iftwo views are possible on the evidence adduced in the case, one pointingout to the guilt of the accused and the other to his innocence, the viewwhich is favourable to the accused should be adopted. It is furthersubmitted by the learned advocate appearing on behalf of the accusedthat the High Court being the first appellate Court would be justified inre-appreciating the entire evidence on record to arrive at just conclusion,however, once there was an order of acquittal passed by the learnedtrial Court, as while so re-appreciating the evidence, the appellate Courtshould first analyse the findings of the trial Court and then for validreasons to be recorded, the appellate Court can reverse such finding ofthe trial Court.

5.4 It is further submitted by the learned advocate appearing onbehalf of the accused that in the present case while re-appreciating theevidence and reversing the order of acquittal passed by the learned trialCourt, the High Court has not at all analysed the findings of the trialCourt, and has given its own findings without even considering the groundson which the learned trial Court acquitted the accused. It is submittedthat therefore the High Court has exceeded in its jurisdiction whileexercising the appellate jurisdiction against the order of acquittal passedby the learned trial Court.

5.5 In support of the above submissions, learned advocateappearing on behalf of the accused has heavily relied upon the following

Adecisions of this Court, Chandu vs. State of Maharashtra, (2002) 9SCC 408 (para 7); Surinder Singh vs. State of U.P. (2003) 10 SCC26 (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 (ParaB18); 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 JT2018 (12) SC 68 : (2019) 2 SCC 513.

5.6 It is further submitted by the learned advocate appearing onbehalf of the accused that even otherwise on merits also, the High Courthas committed grave error in holding the appellant – original accusedNo.1 guilty for the offences punishable under Sections 302 and 498A ofthe IPC and Section 4 of the Dowry Prohibition Act, 1961.

D5.7 It is further submitted by the learned advocate appearing onbehalf of the accused that while convicting the appellant – original accusedno.1 for the offence under Section 302 of the IPC, the High Court hasmaterially erred in relying upon and/or considering the alleged dyingdeclaration. It is submitted that the High Court has failed to appreciateEthe relevant aspect that the alleged dying declaration was recorded onprinted papers with certain corrections and/or different quality of paperswith uncertain statements. It is submitted that the High Court has notproperly appreciated the relevant aspect that the deceased got burninjuries to the extent of 90% inside the locked room, but the kerosenestove without any lid containing 800 ML of kerosene and the match boxFwhich was lying in the same room did not catch fire and for which therewas no explanation by the prosecution.

5.8 Making the above submissions and relying upon the abovedecisions of this Court, it is prayed to allow the present appeal and quashand set aside the impugned judgment and order of conviction passed byGthe High Court.

6. Learned counsel appearing on behalf of the respondent – State,while opposing the present appeal, has vehemently submitted that in thefacts and circumstances of the case, and on re-appreciation of the entire

evidence on record, which is permissible while exercising the powers inan appeal against the order of acquittal, the High Court has not committedany error in reversing the judgment and order of acquittal passed by thelearned trial Court and consequently convicting the accused for theoffence punishable under Section 302 of the IPC.

6.1 It is vehemently submitted by the learned counsel appearingon behalf of the respondent – State that having found that the findingsrecorded by the learned trial Court, recorded while acquitting the originalaccused, are perverse and contrary to the evidence on record andthereafter on re-appreciation of evidence, the High Court has found theaccused guilty, the same is not required to be interfered with by thisCourt.

6.2 It is vehemently submitted by the learned counsel appearingon behalf of the respondent – State that as such, as held by this Court incatena of decisions, the powers of appellate Court in an appeal againstacquittal are no less than in an appeal against conviction. It is furthersubmitted that as held by this Court in catena of decisions, the HighCourt while hearing an appeal against the order of acquittal can re-appreciate the entire evidence on record and having done so and havingfound the dying declaration reliable, there is no infirmity with the convictionof the appellant under Section 302 of the IPC.

6.3 It is vehemently submitted by the learned counsel appearingon behalf of the respondent – State that in the present case, the HighCourt has considered in detail the medical evidence; the dying declarationand the other prosecution witnesses who fully supported the case of theprosecution that it was the appellant herein – original accused no.1 whocommitted the crime and therefore the High Court has rightly convictedthe appellant herein – original accused no.1.

6.4 It is submitted that if the reasonings and the grounds on whichthe learned trial Court acquitted the accused are seen, they are perverseand contrary to the evidence on record. It is submitted that while acquittingthe original accused, the learned trial Court wrongly gave more importanceto some minor contradictions. However, did not consider theoverwhelming evidence in the form of medical evidence and the dyingdeclaration which came to be proved. It is submitted that therefore theHigh Court has rightly convicted the accused by reversing the judgmentand order of acquittal passed by the learned trial Court.

A6.5 Now so far as the submission on behalf the appellant thatwhile quashing and setting aside the order of acquittal, the High Courtfailed to examine the reasons on which the order of acquittal was passedand therefore the High Court exceeded in exercise of its jurisdiction,while sitting as an appellate Court against the judgment and order ofacquittal is concerned, learned counsel appearing on behalf of theBrespondent-State has submitted that merely on the aforesaid ground andif otherwise on re-appreciation of evidence by this Court, it is found thatthe learned trial Court was not justified in recording the acquittal of theaccused and that the evaluation of the evidence made by the trial Courtwas manifestly erroneous and even otherwise on merits the ultimateCconclusion of the High Court in convicting the accused is found to becorrect, solely on the aforesaid ground that the High Court did not consider/examine the reasons on which the order of acquittal was passed, theconviction of the accused is not required to be set aside. In support ofabove submissions, learned counsel appearing on behalf of the respondent– State has heavily relied upon the following decisions of this Court,DAtley v. State of Uttar Pradesh AIR 1955 SC 807; Aher Raja Khimav. The State of Saurashtra 1955 (2) SCR 1285; Umedbhai Jadavbhaiv. State of Gujarat (1978) 1 SCC 228; K.Gopal Reddy v. State ofAndhra Pradesh (1979) 1 SCC 355; Sambasivan v. State of Kerala(1998) 5 SCC 412; K. Ramakrishnan Unnithan v. State of KeralaE(1999) 3 SCC 309.

6.6 Making the above submissions and relying upon the aforesaiddecisions of this Court, it is prayed to dismiss the present appeal.

7. We have heard the learned counsel for the respective partiesat length.F

7.1 We have considered and gone through the judgment and orderof acquittal passed by the learned trial Court as well as the impugnedjudgment and order passed by the High Court reversing the acquittaland convicting the original accused for the offence punishable underSection 302 of the IPC.G

7.2 We have also re-appreciated the entire evidence on record tosatisfy ourselves on the guilt of the appellant – original accused no.1.We have also considered the reasonings and the findings recorded bythe learned trial Court while acquitting the accused. We have also

considered the reasonings and findings recorded by the High Court whileconvicting the appellant – original accused no.1.

8. Having considered the entire evidence on record afresh and onre-appreciation of the entire evidence on record, we are of the firmopinion that the High Court has not committed any error in holding theappellant – original accused no.1 guilty for the offence punishable underSection 302 of the IPC. In the present case, there is dying declarationgiven by the deceased which has been proved and supported by theindependent witnesses, metropolitan magistrate (PW28), it has beenestablished and proved by examining the medical officer and even themedical officer certified that the patient was conscious and coherentand fit state of mind to give the statement. The metropolitan magistratewho recorded the dying declaration and who was examined by theprosecution as PW28 deposed as under:

“that he was working as Prl. Jr. Civil Judge, Bhongir; during therelevant period, he was working as XI Metropolitan Magistrate,Secunderabad. He has further deposed that in pursuance of therequisition received from the I.O., P.S. Afzal Gunj, he proceededto Osmania General Hospital on 14.2.2005 and reached the saidplace around 6:25 a.m.; with the assistance of the police and dutydoctor, he went to Acute Burns Ward and contacted the victim byname Abhilash Kaur, wife of Vijay Mohan Singh; one Dr. Rajeshwas the duty doctor; he interacted with the said doctor and satisfiedhimself as to the mental fitness of the victim to Abilash Kaur thestatement before him and also obtained an endorsement in thatregard on the relevant document Ex. P-2 which is already marked.Further he has deposed that he asked preliminary questions to thevictim and thereafter having been satisfied as to the nature of herstatement being voluntary and not being under coercion or anykind of duress, he recorded her statement in his own handwritingin Ex. P-2 and Ex. P-2(d) is his signature; the handwriting portionin Ex. P-2 is in his handwriting and they are true and correct; theyare in question and answer form. Further, he has deposed that heread over the contents therein to the victim Abhilash Kaur in Hindilanguage which was known to her and to him also; having admittedto the correctness of that document, victim signed in his presenceas per Ex. P-2(a); that he obtained the signature of the duty doctor

as per Ex. P-2(c). Further he has deposed that as matter ofabundant caution, he obtained the R.T.I. of the victim AbhilashKaur below Ex. P-2(a); that victim Abhilash Kaur made statementagainst her husband with regard to assault and also acting underthe influence of his mother and sister that he demanded money;she complained against the accused as being responsible for thedeath of his first wife also on account being burnt by him. He hasfurther deposed that at the time of recording Ex. P-2, other thanhimself, the doctor and the victim, none else were present nearby;the victim was there in the general ward; having so recordedsuch statement of the victim as per Ex. P-2, he returned to hisplace of work along with the document and along with coveringletter, he sent Ex. P-2 to IV Metropolitan Magistrate, Hyderabad,within whose jurisdiction that Osmania Hospital and Afzal Gunjpolice station are situated; and that the covering letter is markedas Ex.P-2(e) and Ex.P-2(f) is his signature. Further he has deposedthat he was duty bound to record such statements in all thehospitals of Hyderabad for 15 days and for the next 15 days,some other Magistrate will be there; likewise the duty keepschanging every 15 days and since the date pertaining to therecording of this statement fell during his duty days he recordedthe same.”

8.1 On Ex. P-2, the medical officer had certified that at the relevanttime the patient was conscious and coherent and fit state of mind to givethe statement. In the dying declaration, the deceased specifically statedbefore 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 myhusband Vijaya Mohan Singh took kerosene from the kerosenebatti stove and put it on my body. I was wearing green color shirtand shalwar and he lit match stick and put the burning matchstick on my body and locked the door of the room and went awayGas 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 blameanyone for this to you?

My husband did this to me. He beats me and acts under theinfluence of his mother and sisters. He demanded money fromme and would torture to me. His first wife was also burnt byhim.”

While answering question nos. 10, 11 & 12, the victim stated asunder:

Q.No.10 What was the behaviour of your husband Vijay MohanSingh?

My husband would say that I am mad and frequently ask money.He had earlier wife by name Kamaljeet Kaur. She too was burntby my husband and she died. My husband managed the case andcame out. (Patient is in pain). He would ask me to get moneyfrom my parents.

Q.No.11 How you come out of the room and where was yourdaughter?

I opened the door and came out and my daughter was in otherroom 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 andmy brother in law Madan Mohan Singh threatened me and askedme not to tell the truth and hence I gave wrong statement. NowI am telling the truth. Sir please help me and save me. My childbe taken care of.”

9. Thus, the dying declaration involving the appellant came to beestablished and proved by the prosecution, by examining the doctor aswell as the metropolitan magistrate who record the dying declaration.Despite the above overwhelming evidence in the form of medicalevidence as well as the dying declaration and the deposition of themetropolitan magistrate, the learned trial Court discarded the same onsome minor contradictions/omissions. It also appears from the judgmentand order passed by the learned trial Court that the learned trial Courtgave undue importance to the initial statement of the victim while givingthe history to the doctor when she was admitted and when she gave thehistory of accidental burns while cooking in kitchen. However, the trial

ACourt did not consider her explanation on the above gave in the dyingdeclaration. Even considering the surrounding circumstances and themedical evidence and the other evidence, the defence has miserablyfailed and proved that it was an accidental burns/death. The appellant –original accused no.1 was last seen in the house and immediately on theoccurrence of the incident he ran away. Thus, we are of the opinionBthat the approach of the trial Court was patently erroneous and theconclusions arrived at by it were wholly untenable.

10. In the light of the above findings recorded by us, it is requiredto be considered, whether solely on the ground that the High Court hasnot examined the reasons on which the order of acquittal was passedCand convicted the accused by interfering with the order of acquittal passedby the learned trial Court, the same is further required to be interferedwith by this Court?

11. An identical question came to be considered before this Courtin the case of Umedbhai Jadavbhai (supra). In the case before thisDCourt, the High Court interfered with the order of acquittal passed bythe learned trial Court on re-appreciation of the entire evidence on record.However, the High Court, while reversing the acquittal, did not considerthe reasons given by the learned trial Court while acquitting the accused.Confirming the judgment of the High Court, this Court observed andEheld in para 10 as under:

“10. Once the appeal was rightly entertained against the order ofacquittal, the High Court was entitled to re-appreciate the entireevidence independently and come to its own conclusion. Ordinarily,the High Court would give due importance to the opinion of theFSessions Judge if the same were arrived at after properappreciation of the evidence. This rule will not be applicable inthe present case where the Sessions Judge has made an absolutelywrong assumption of very material and clinching aspect in thepeculiar circumstances of the case.”

G11.1 In the case of Sambasivan (supra), the High Court reversedthe order of acquittal passed by the learned trial Court and held theaccused guilty on re-appreciation of the entire evidence on record,however, the High Court did not record its conclusion on the questionwhether 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 accusedon reversal of the acquittal passed by the learned trial Court, after satisfythat the order of acquittal passed by the learned trial Court was perverseand suffer from infirmities, this Court declined to interfere with the orderof conviction passed by the High Court. While confirming the order ofconviction passed by the High Court, this Court observed in paragraph 8as under:“8. We have perused the judgment under appeal to ascertainwhether the High Court has conformed to the aforementionedprinciples. We find that the High Court has not strictly proceededin the manner laid down by this Court in Doshi case (1996) 9 SCC225 viz. first recording its conclusion on the question whether theapproach of the trial court in dealing with the evidence was patentlyillegal or the conclusions arrived at by it were wholly untenable,which alone will justify interference in an order of acquittal thoughthe High Court has rendered well-considered judgment dulymeeting all the contentions raised before it. But then will thisnon-compliance per se justify setting aside the judgment underappeal? We think, not. In our view, in such case, the approachof the court which is considering the validity of the judgment of anappellate court which has reversed the order of acquittal passedby the trial court, should be to satisfy itself if the approach of thetrial court in dealing with the evidence was patently illegal orconclusions arrived at by it are demonstrably unsustainable andwhether the judgment of the appellate court is free from thoseinfirmities; if so to hold that the trial court judgment warrantedinterference. In such case, there is obviously no reason why theappellate court’s judgment should be disturbed. But if on the otherhand the court comes to the conclusion that the judgment of thetrial court does not suffer from any infirmity, it cannot but be heldthat the interference by the appellate court in the order of acquittalwas not justified; then in such case the judgment of the appellatecourt has to be set aside as of the two reasonable views, the onein support of the acquittal alone has to stand. Having regard tothe above discussion, we shall proceed to examine the judgmentof the trial court in this case.”

A11.2 In the case of K.Ramakrishnan Unnjithan (supra), afterobserving that though there is some substance in the grievance of thelearned counsel appearing on behalf of the accused that the High Courthas not adverted to all the reasons given by the trial Judge for accordingan order of acquittal, this Court refused to set aside the order of convictionpassed by the High Court after having found that the approach of theBSessions Judge in recording the order of acquittal was not proper andthe conclusion arrived at by the learned Sessions Judge on several aspectswas unsustainable. This Court further observed that as the SessionsJudge was not justified in discarding the relevant/material evidence whileacquitting the accused, the High Court, therefore, was fully entitled toCre-appreciate the evidence and record its own conclusion. This Courtscrutinised the evidence of the eye-witnesses and opined that reasonsadduced by the trial Court for discarding the testimony of the eye-witnesses were not at all sound. This Court also observed that as theevaluation of the evidence made by the trial court as manifestly erroneousand therefore it was the duty of the High Court to interfere with anDorder of acquittal passed by the learned Sessions Judge.11.3 In the case of Atley (supra), in paragraph 5, this Courtobserved and held as under:

“5. It has been argued by the learned counsel for the appellantEthat the judgment of the trial court being one of acquittal, the HighCourt should not have set it aside on mere appreciation of theevidence led on behalf of the prosecution unless it came to theconclusion that the judgment of the trial Judge was perverse. InOur opinion, it is not correct to say that unless the appellate courtin an appeal under Section 417, Criminal P. C. came to the con-Fclusion that the judgment of acquittal under appeal was perverseit could not set aside that order.It has been laid down by this Court that it is open to the HighCourt on an appeal against an order of acquittal to review theentire evidence and to come to its own conclusion, of course,Gkeeping in view the well established rule that the presumption ofinnocence of the accused is not weakened but strengthened bythe judgment of acquittal passed by the trial court which had theadvantage of observing the demeanour of witnesses whose evi-dence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powersof appreciation of evidence in an appeal against an order of ac-quittal as in the case of an appeal against an order of conviction,subject to the riders that the presumption of innocence with whichthe accused person starts in the trial court continues even up tothe appellate stage and that the appellate court should attach dueweight to the opinion of the trial court which recorded the orderof acquittal.

If the appellate court reviews the evidence, keeping those prin-ciples in mind, and comes to contrary conclusion, the judgmentcannot be said to have been vitiated. (See in this connection thevery cases cited at the Bar, namely, Surajpal Singh v. The State1952 CriLJ331; Wilayat Khan v. State of Uttar Pradesh, AIR1953 SC 122. In our opinion, there is no substance in the conten-tion raised on behalf of the appellant that the High Court was notjustified in reviewing the entire evidence and coming to its ownconclusions.”

11.4 In the case of K.Gopal Reddy(supra), this Court hasobserved that where the trial Court allows itself to be beset with fancifuldoubts, rejects creditworthy evidence for slender reasons and takes aview of the evidence which is but barely possible, it is the obvious dutyof the High Court to interfere in the interest of justice, lest theadministration of justice be brought to redicule.

12. Considering the aforesaid decisions, it emerges that even inthe case where the High Court in an appeal against the order of acquittalinterfered with the order of acquittal without specifically considering thereasons arrived at by the learned trial court and without specificallyobserving that the reasons are perverse, this Court can still maintain theorder of conviction passed by the High Court, if this Court is satisfieditself that the approach of the trial court in dealing with the evidencewas patently illegal or the conclusions arrived at by it are demonstrablyunsustainable and the judgment of the appellate court is free from thoseinfirmities. It also emerges that the High Court is entitled to re-appreciatethe entire evidence independently and come to its own conclusion,however, the High Court would not be justified in interfering with theorder of acquittal solely on the ground on re-appreciation of the entireevidence that two views are possible.

A13. On re-appreciation of the entire evidence on record and thefindings recorded by the learned trial court while acquitting the accused,we are of the opinion that the approach of the trial court was patentlyerroneous and the conclusions arrived at by it were wholly untenable.We find that it is not case where two reasonable views on examinationof the evidence are possible and so the one which supports the accusedBshould be adopted. The view taken by the trial court can hardly be saidto be view on proper consideration of evidence, much less reasonableview. The learned trial court, as observed hereinabove, committed apatent error in discarding the dying declaration and the other materialevidence, discussed hereinabove. Therefore, the interference by theCHigh Court in the appeal against the acquittal of the appellant andrecording the finding of his conviction for the offence under Section 302of the IPC, on consideration of the evidence, is justified. The judgmentunder appeal does not warrant any interference.14. Now so far as the decisions relied upon by the learned counselDappearing on behalf of the appellant-accused, referred to hereinabove,more particularly recent decision of this Court in the case of Mohd.Akhtar @ Kari (supra) is concerned, first of all, there cannot be anydispute with reference to the proposition of the law laid down by thisCourt in the aforesaid decisions. However, we are of the opinion thatnone of the aforesaid decisions relied upon by the learned counselEappearing on behalf of the appellant shall be applicable to the facts ofthe case on hand. Even in the case of Mohd. Akhtar @ Kari (supra),on appreciation of the evidence, this Court found that the acquittal wasjustified on probable view taken by the trial court. On appreciation ofevidence, this Court observed that the High Court could not have reversedFthe judgment of the acquittal merely because another view was possible.In the present case, as observed hereinabove, and on re-appreciation ofthe entire evidence on record, this is not case where two reasonableviews are possible and so the one which supports the accused should beadopted. As observed hereinabove, the findings recorded by the learned

trial court while acquitting the accused are perverse and the approachGof the trial court was patently erroneous and the conclusions arrived atby it were wholly untenable. Therefore, considering the aforesaiddecisions of this court in the cases of Sambasivan (supra); UmedbhaiJadavbhai (supra) and Atley (supra), we are of the opinion that theimpugned judgment and order of conviction passed by the High Court is

not required to be interfered with by this Court. The judgment and orderunder appeal does not warrant any interference. Hence, we find nomerit in the appeal and the same deserves to be dismissed, and isaccordingly dismissed.

Ankit Gyan

Appeal dismissed.